Reason Number 2,345,789 To Have A Will

[Full disclosure: I don’t have a will. I know I should. And everyone tells me I should, even my doctor who reminds me, every year, at my annual check up that I need one. Yet I still don’t have one. But this post is not about me.]

In Estate of Travers, the trial court provided yet another reason why everyone should have a will. In that case, decedent passed away unexpectedly (and far too young). He died without a will, without a spouse, and without any children. His parents, who were divorced, agreed on every aspect of the administration of his estate except one — whether decedent should be cremated or buried. Because they could not agree, the court had to resolve the issue.

At the outset, the court noted that both parents had presented “reasonable explanations for their respective positions that [were] very personal to them and emotionally charged.” But, under New Jersey law, it was the “wishes and desires of the decedent, not the parents,” that governed.

Under the New Jersey Cemetery Act, a decedents can make their own funeral and burial arrangements in their wills. If a decedent does this, then those arrangements must be followed. Decedents can also appoint someone in their wills to “control the funeral and disposition of the human remains.” If a decedent goes this route, then “the funeral and disposition shall be in accordance with the instructions of the person so appointed.” But, if a decedent does not make his or her own arrangements or appoint someone to do so, then the Cemetery Act provides that “the right to control the funeral and disposition of the remains” passes first to the surviving spouse, then to a majority of the surviving adult children, then to the surviving parent or parents, then to a majority of the brothers and sisters, then to “[o]ther next of kin of the decedent according to the degree of consanguinity.”

Unfortunately, as the trial court noted in Travers, the Cemetery Act does not explain “how to resolve a dispute that arises between even numbers of next-of-kin of equal statutory standing.” In other words, the statute does not explain how to break a tie between surviving children, surviving siblings, or, as was the case in Travers, surviving parents.

For guidance, the Travers court looked to the legislative history of the Cemetery Act. The court noted that the act was amended in 2003 to allow decedents to make their own funeral and/or burial arrangements in their wills. The court concluded that this expressed the legislature’s intent that “funerals and dispositions of remains shall be in accord with the wishes and desires of the decedent.” Therefore, when faced with a dispute like the one in Travers, a court must determine which “next-of-kin of equal standing” will “control the funeral and/or disposition of remains in a manner that most closely reflects the wishes, desires and expectations of the decedent.” (As a side note, this is a bit of a curious construct. The question is not “what did the decedent want?” but rather “which next-of-kin is going to make decisions consistent with what the decedent would have wanted?”)

The Travers court identified four factors that should be considered when trying to determine which next-of-kin will handle a decedent’s burial in a manner most consistent with the decedent’s desires:

  1. communications between decedent and others expressing decedent’s “wishes, desires, and expectations;”
  2. the relationship between decedent and the individual “next-of-kin of equal standing” (under the theory that “persons with a closer relationship to the decedent are more likely to be in a better position to surmise the decedent’s desires or expectations upon death”);
  3. decedent’s religious or cultural background; and
  4. which next-of-kin will be designated administrator of the estate (under the theory that the administrator will have to act in the best interests of the estate, which will required that person to determine the costs of the funeral arrangements, assess the estate’s ability to pay, and line up alternate funding if the estate cannot pay).

In Travers, the court held that decedent’s father, who was advocating that his son’s remains be buried, was entitled to make the decision regarding the disposition of decedent’s remains. In doing so, the court relied, almost exclusively, on the first of the four factors it identified. After decedent’s parents divorced, he lived with his father and only saw his mother sporadically. Therefore, the court concluded that decedent’s father had the “closer relationship to the decedent at the time of his death,” and was “in a better position to surmise the decedent’s wishes and desires for disposition of remains.”

The remaining factors were really non-factors: there were no communications from decedent on the issue, so the first factor was “neutral;” decedent was Roman Catholic, which historically “preferred” burial, but “now provides for both burial and cremation,” so the third factor was also neutral; and both parties were going to secure alternate funding for the disposition of decedent’s remains since the estate had few assets, so the fourth factor was “moot.” Therefore based primarily on the decedent’s closer relationship with his father, the father was allowed to make decisions regarding the disposition of decedent’s remains.

[Note: Travers is a trial court decision, so it is not binding on anyone other than the parties in the case. But this is an interesting issue, on which there is little, if any, other guidance from New Jersey courts, so I thought it was blog-worthy.]

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