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Body donation and the limits on testamentary wishes

There are limits to what can be done with one’s body after death, Toronto wills and estates lawyer Matthias Duensing writes in The Lawyer’s Daily.

And while people continue to make seemingly outrageous directives, the courts have determined that one’s wishes have to conform to “public policy,” says Duensing, principal of Duensing Law.

He cites the recent example of a renowned animal rights activist who, after she dies, wants the “meat” of her body to be barbecued and her skin made into purses and other leather products.

In her public will, the activist says, “As someone who has dedicated a part of my life to the alleviation of animal suffering in various parts of the world, it is my wish that upon my death, my body be used to further that same goal.”

Duensing says her suggestions on how her body may be used include:

  • Barbecuing the meat of her body “to remind the world that the meat of a corpse is all flesh, regardless of whether it comes from a human being or another animal …”
  • Removing her skin and making it into various leather products, such as purses
  • Cutting off her feet to create an umbrella stand, akin to elephant-foot ones

“Her extraordinary demands call into question whether her testamentary wishes could be brought into effect in Canada,” says Duensing. “It is a basic tenant of estate law that a deceased may dispose of their assets as they wish.

“However, at common law, a human corpse cannot be considered ‘property’ (the ‘no property’ rule). A deceased has no right at common law to dictate how their body will be handled post-death.”

He says an executor, as the custodian of the deceased’s body, has the power to determine how that person's remains are to be handled, “in accordance with the executor’s common-law duty to dispose of the body: (i) in a dignified manner (typically by burial or cremation); (ii) in a manner befitting the deceased’s station in life; and (iii) providing details of the disposal to the deceased’s family.”

Duensing points out that an executor doesn’t have to “adhere to the wishes of the deceased. Any direction in a will to deliver the body to someone other than the executor is therefore void.”

He notes that in British Columbia, “The executor is required to follow the directions of the deceased regarding the disposition of their remains, provided that the deceased’s preferences are in a will or funeral services contract, comply with the Human Tissues Gift Act, and the deceased’s preferences are not unreasonable, impracticable or cause hardship. A similar provision exists in Quebec.”

The courts, however, have limited testamentary freedom when the wishes of the deceased are contrary to public policy, says Duensing.

In this case, for example, the deceased donated the residue of his estate to a known white supremacist group. Duensing says the New Brunswick Court of Appeal found that the beneficiary group’s purpose and activities violated public policy and so the deceased’s wishes were not permitted.

“One could imagine the desire for a human barbecue and to be made into a human skin purse, no matter how noble the purpose, could be seen as being contrary to public policy,” he says.

“Moreover, the Criminal Code provides at s. 182 that an executor who ‘improperly or indecently interferes with or offer any indignity to a dead human body or human remains’ is guilty of an indictable offence.”

Duensing says that whole body donations are possible in Ontario through the Trillium Gift of Life Network Act, which says any person 16 years or older may consent to their body or parts of their body to be used after their death for “therapeutic purposes, medical education or scientific research.”

Whether the animal activist’s wishes “would fall into one of the allowable purposes for body donation in Ontario is debatable,” he says, “but it would definitely be a public education and incredible advocacy for [her organization]. Perhaps, for now, the shock factor of the expression of [her] wishes, a la Jonathan Swift’s A Modest Proposal, will suffice.”

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