A “husband” (also referred to as decedent or deceased) and his wife were married for forty years at the time of his death. They had four children together, and she had two from a previous marriage. A New York Family Lawyer the husband was Jewish and his wife was not. They celebrated some religious holidays with the family, but they did not belong to a temple, nor did the children regularly attend services. The husband never had a bar mitzvah ceremony. The husband’s family had a family plot in Mount Hebron Cemetery, a Jewish cemetery in New York, purchased by the husband’s grandfather. All of the husband’s family and their spouses were buried there. The husband and his wife lived in New York until 1998 when they moved to Florida.
After relocating to Florida, the husband began to have health problems. Around 1999, the husband told his wife that he wanted to be buried in his family plot in Mount Hebron with her. However, in May of 2001, when the husband went into the hospital, he and his wife first discussed being buried together in Florida.
The husband’s brother and sister were close to him but they did not have a good relationship with his wife. A Nassau County Family Lawyer said as a result, the husband would visit with them in Arizona and New York after he moved to Florida. In February 2002, the brother took the husband to a doctor in Arizona who diagnosed him with dementia and Parkinson’s disease. Later that year, while visiting his sister in New York, the husband executed a durable power-of-attorney, naming his brother as his agent. When the husband returned to Florida, his wife would not allow the brother or the sister to see the husband, necessitating them to obtain a court order permitting visits.
In May of 2003, the wife filed a petition to determine the husband’s incapacity, alleging that he suffered from various diseases, including dementia and Alzheimer’s.
A subsequent petition for appointment of a guardian was filed. In the course of those proceedings, the husband met with the attorney ad litem appointed to represent him. A Nassau Child Support Lawyer said the husband told the attorney that he did not want a guardian but expressed no preference as to who should be appointed if he were declared incompetent. He also told the attorney that he was aware of the rift between his siblings and his wife and felt caught in the middle. A physician who examined the husband testified that during the examination the husband expressed the sentiment that he wished to be buried in Florida with his wife.
The brother of the husband also filed a petition to be appointed as the guardian, based upon the durable power-of-attorney. However, while both petitions were pending, the husband died.
Shortly before the husband’s death, the brother produced a will that the husband had apparently executed in 1992 in New York in which he directed that he be buried in a traditional Jewish burial in their family plot. In that will, he appointed his brother as executor.
Where should the burial take place? Is the decedent’s testamentary burial instructions binding upon the court or may be disregarded when the decedent has made a subsequent oral statement of desire as to his final resting arrangements?
The Court’s Ruling:
Under Jewish burial customs, a rabbi’s testimony has been presented and explained that: a) Cremation is prohibited under Jewish law and would not be considered a traditional Jewish burial; b) Jewish tradition is that husbands and wives are buried together as long as the wife is Jewish; c) Some Jewish cemeteries allow a non-Jew to be buried but not in the confined Jewish cemetery area; and d) More recent traditions allow Jews who are married to non-Jewish spouses to be buried in the same cemetery but not in the exclusive restricted area.
Moreover, the provisions in a will regarding burial instructions are not conclusive of a testator’s intent and the trial court may take evidence that the testator changed his or her mind regarding disposition of his body.
The common law recognized no property right in the body of a deceased. In the absence of a testamentary disposition, the spouse of the deceased or the next of kin has the right to the possession of the body for burial or other lawful disposition.
Where the decedent or testator has expressed his exclusive intention through the will, the testator’s wishes should be honored. When the executor of the will refused to follow that direction for reasons of conscience, the testamentary language is controlling, and the executor is required to fulfill the testator’s directives. However, such is not the case when the testator indicated a change of mind as to the disposition of his body subsequent to the execution of the will.
Looking to decisions of other states, whether to enforce the will provisions regarding disposition of the testator’s body depends upon the circumstances of the case.
Having recognized certain property rights in dead bodies, many courts have announced the rule that a person has the right to dispose of his own body by will. However, courts, while paying lip service to the doctrine of testamentary disposal, have in certain instances permitted the wishes of the decedent’s spouse or next of kin to prevail over those of the testator. In other instances, courts have accepted and acted upon evidence that indicated that the decedent’s wishes concerning the disposition of his body had changed since the execution of his will.
The disposition of a body is not a property right, but a mere personal right to the testator. Directions for disposition are not testamentary in character to a degree which would require revocation of the direction to be accomplished in the manner as prescribed by statute for the revocation of wills. A dead body is not properly viewable as property or assets. Thus, changes in the testator’s intent could be considered:
It is the right of a particular decedent, from time to time in his discretion, to vary the directions respecting disposal of his remains, with the result that the inquiry of the court must be directed to the ascertainment of the latest expression of wish by the testator on the subject.
Here, however, because of the express provision of the will the court demanded a clear and convincing proof that a different disposition was the desire of the deceased.
In Florida, as in New York, a will is construed to pass all property that the testator owns at death. The testator’s body is not considered property. Therefore, just as in New York, a directive in a will regarding the disposition of a body does not have the same force and effect as do provisions directing the disposition of property. Therefore, the court concludes that a testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body.
The truth of the matter is, one might live in several states during a lifetime. A provision made in a will that is not revisited for many years may not reflect the intent of the testator as to the disposition of his or her remains. A direction for the disposition of one’s body should not be conclusive when contrary and convincing oral or written evidence of a change in intent is present.
The trial court heard the evidence and weighed its credibility. It is not the function of an appellate court to substitute its judgment for that of the trial court by reevaluating the evidence presented. The trial court was aware of the heavier burden to disregard an express term of the will. Even where the standard that must be met is a clear and convincing evidence standard, The herein court’s task on review is not to conduct a new trial proceeding, reweigh the testimony and evidence given at the trial court, or substitute our judgment for that of the trier of fact. A trial court’s determination will be upheld if it is supported by competent, substantial evidence.
Accordingly, the burial disposition in the will is refused; the deceased shall be buried in Florida where his wife is.
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