Curry v. Curry, 2023 NSSC 402
Background
The Supreme Court of Nova Scotia, in Curry v. Curry recently looked at a case which involved the placement of remains.
Anne Curry died in January 2022 at age 90, leaving three executor-daughters who disagreed over the disposition of her cremated remains.
Mary (minority) wanted ashes split between Anne’s husband Leo’s family plot and Anne’s parents’ cemetery, with some shared among children.
Paula and Patti (majority) wanted all ashes buried solely with Anne’s Ukrainian parents, arguing Anne felt unloved by Leo’s family and their marriage had been troubled.
Legal Issues
The Court addressed two novel questions with no direct Canadian precedent:
- What factors govern the disposition of cremated remains?
- How should Courts resolve disputes among co-executors on this issue?
Key Legal Principles Established
On disposition generally, executors have a duty, not property rights over “remains”, and must dispose of them in a dignified and respectful manner. A deceased’s wishes are relevant but not legally binding.
On multi-executor disputes, the Court rejected both sides’ arguments. The unanimity rule (relied on by Mary) applies to estate property, not human remains.
The majority-rules Will clause (relied on by Paula and Patti) is similarly not determinative, since Will provisions don’t govern bodily disposition. Instead, the Court held that a majority decision is entitled to deference, unless it breaches the overriding dignity obligation or the majority renders the decision-making process meaningless by withholding relevant information or refusing to reasonably consider opposing views.
Findings
The majority’s decision was not entitled to deference because Paula withheld two critical pieces of information from co-executor Mary: a document called “My Last Wish” found in Anne’s strongbox, and verbal communications from Anne’s friend Joseph MacLean indicating Anne had wanted her ashes split equally between her parents and Leo. The majority also unreasonably dismissed a 2013 email from Anne expressing love for Leo as a forgery, a conclusion the Court found had no credible basis and was coloured by the majority’s personal animosity toward Leo.
Court Order
The Court exercised its own discretion and ordered:
- Half of Anne’s ashes interred with Leo at Saint Mary’s Cemetery, East Bay
- Half interred with Anne’s parents at New Calvary Cemetery, Whitney Pier
- The proposal to distribute portions to individual children was denied as lacking the certainty needed to ensure dignified disposition
Costs: None awarded, as the issues were novel and neither side fully succeeded.
COMMENT
Appoint Estate Trustees or Executors whom you can trust to carry out your wishes. It seems odd that someone’s remains would be split up and placed in two separate locations.
Brian Madigan LL.B., Broker