Today’s blog was written by Demetre V. student at law.
While the majority of estate planning typically revolves around how a testator should plan to take care of their loved ones after their death, a sometimes-overlooked component of estate planning involves how a testator should plan to take care of their own body after their death. Indeed, burial considerations, as well as the interment rights to be buried in a certain place (usually a cemetery), are things that a testator should make perfectly clear to their executors and trustees. In this blog post, we will specifically focus on interment rights for cemeteries in Ontario.
First, one should note that a testator cannot impose binding instructions with respect to their burial upon their executors and trustees. In the 2004 decision Bedmont Estate, Re,  O.J. No. 4267, the Ontario Superior Court of Justice confirmed that a testator’s burial is the responsibility of their executors and trustees. As such, the executors and trustees have the right to determine the place and manner of the burial; thus, they are not obligated to fulfil a testator’s wishes in this respect. Of course, executors and trustees still have a legal obligation to treat a testator’s remains in a “dignified” manner, as bringing indignity to human remains is an offence under subsection 182(b) of the Criminal Code.
That being said, executors and trustees, who are often a testator’s loved ones, usually make their best efforts to honor a testator’s burial wishes. A testator can make these efforts easier by, prior to their death, purchasing interment rights to be buried at a cemetery. In Ontario, the Funeral, Burial and Cremation Services Act, 2002 is the key statute for regulating interment rights. Subsection 1(1) of the Act defines interment rights as “the right to require or direct the interment of human remains” in a lot or plot. The Ontario government has made it clear that cemetery operators do not sell the land itself when granting interment rights; instead, the substance of an interment right is the right to be buried in a grave lot or plot.
A key aspect of interment rights is that they are held by what the Act defines as an “interment rights holder”. In subsection 1(1), the Act specifically defines “interment rights holder” as “the person who holds the interment rights with respect to a lot whether the person be the purchaser of the rights, the person named in the certificate of interment or such other person to whom the interment rights have been assigned”. The reason for this definition is that a deceased person cannot own interment rights, as a deceased person cannot own any rights or property; that is the whole reason why the estates law regime exists! Furthermore, a policy reason for why a deceased person cannot hold their own interment rights is that, at certain points after a testator’s death, one often must make decisions with respect to the management of the rights (for example, whether or not to purchase a tombstone, and if so, what kind of tombstone to purchase).
Thus, the question is how to assign these interment rights. What is often the case is that cemeteries will allow an interment rights holder to pre-authorize or pre-arrange their own burial. From a practical perspective, this makes sense, as it can relieve loved ones of some stressful decision-making. As far as, after a testator’s death, assigning the rights for their continued management goes, it seems that Ontario cemeteries recognize that interment rights can be gifted through a will just as with any other right or property. Of course, in doing this, it is a good idea for a testator to let their cemetery know in advance that they will assign their interment rights through their will; this is important when considering that some cemeteries will not allow interment rights to be given or taken without prior notification. An alternative solution is, if the cemetery allows for it, to register for joint interment rights so that the surviving interment rights holder can make burial decisions without any hassle.
A lack of interment rights planning can lead to undesirable results. Just as with other rights or property, if a testator does not plan for how to assign their interment rights, they likely will be governed by Ontario’s intestacy regime. To avoid putting an administrative burden on a loved one who may not want to make interment decisions, an interment rights holder should be sure to convey to their executors and trustees who will receive their interment rights after they die (and in many cases, it is an executor and/or trustee who will receive these rights). It is also critical to review all of a cemetery’s policies with respect to interment rights and ensure that the cemetery is adequately notified of all decisions with respect to interment; this can prevent future complications.