The Kennedy family has had more than its share of tragedies and the recent dispute over where to bury Mary Kennedy is the latest chapter .
Mary Richardson Kennedy was the estranged wife of Robert F. Kennedy , Jr., the son of assassinated Attorney General Robert Kennedy . They were in the midst of divorce proceedings and living separate and apart when Mary Kennedy hanged herself at the family’s estate in Bedford , NY.
The Kennedy family had announced plans for Mary’s memorial service which was to include a wake at the couple’s home in Bedford, a funeral the next day at a Roman Catholic church and burial near the family’s seaside compound in Hyannisport, Mass.
The same day the plans were announced, one of Mary’s siblings, Thomas Richardson filed a Court motion in White Plains, New York to stop the Kennedy plans and have the funeral service in Manhattan. The judge sealed the Court file so details are sketchy.
However, the Court ordered the medical examiner to transfer the body to a funeral home in Bedford. The funeral according to online reports took place May 19 in a Catholic Church in Bedford, NY near the deceased’s home and Mary was to be buried in a Catholic church cemetery in Hyannis, Mass.
It is not clear from the news reports as to whether Mary had a will. If she had a will, her executor would have priority to determine her funeral arrangements and disposal of her remains.
What then are the legal principles that apply with respect to dealing with a deceased’s remains?
In an excellent paper delivered at a recent seminar, entitled “Disputes Over What Remains”, Toronto estates lawyer Kimberly Whaley discusses the law in this area. Ms. Whaley describes the duties of an executor when dealing with the Deceased’s remains :
“In Ontario, Estate Trustees ( executors) have the following duties with respect to dealing with the body and remains of a deceased person:
- To dispose of the body in a decent and dignified manner;
- To dispose of the body in a manner befitting the Deceased’s station in life;
- To provide particulars of the disposal of the Deceased’s remains to the Deceased’s next of kin.”
While the Deceased may leave explicit wishes in his or her will for his or her funeral and disposal of remains ( eg. Burial or cremation), the executor is not compelled in Ontario to follow those wishes as long as the above duties are fulfilled.
Where there is no will, next of kin or other interested parties may apply to the Court to be appointed as the deceased’s legal representative.
Disputes can often arise on religious grounds and in particular, where spouses come from different religious and cultural backgrounds. Some religions like Judaism and Islam forbid cremation . Where persons of this heritage marry outside their faith, the potential arises for a dispute when this person dies and his or her executor of another faith decides to proceed with cremation against the wishes of the Deceased’s next-of -kin.
The Courts when dealing with these types of disputes will typically apply the law without reference to religious principles or preferences and will only require the executor to dispose of the body in a decent and dignified manner. In Ontario, this duty is met by either burial or cremation.
Accordingly, if there is the potential for a dispute over funeral and burial arrangements, it is imperative to have a discussion with your family as to your wishes before you depart this world. This would include your wishes with regards to organ donations.