want to draw up a will 101


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want to draw up a will 101

  1. 1. Personal Status after Death: Wills, Funerals, Criminal Pardons Here is a true story: shortly before moving back to the old country, the grandmother of a youngCanadian from an immigrant family was upset. She told her grandson that she had expressed awish that, when she died, she would be buried in the hometown of some relatives that she hadrecently been reunited with, but her daughter his mother was opposed to this. She was very bitterabout the matter; her grandson told her not to be, but to consult with a lawyer about making herown funeral arrangements when she went back. After she returned to the old country, thegrandson spoke with her and she told him that she had bought a grave and pre-arranged a funeralceremony in the location of her choice. This anecdote, among other things, has prompted me tostudy the following question: when a person dies, do they continue to have any legal subjectivity?Probably the most enshrined and long-held right of a person respecting their death is the power tomake a will. Generally speaking, in the civilized world, at least, anyone with full legal capacity maywrite a will, by which they may not only dispose of their property more or less as they choose, butalso do things like naming a guardian for their children. The right to do this is firmly entrenchedacross the world; in most "common law" jurisdictions, there are few, if any restrictions on how aperson may dispose of their property in a will, although in many "civil law" countries, ones spouseand children are legally entitled to a set portion of the estate.Disposition of remainsThe example already given of a conflict between a persons burial wishes and those of theirimmediate family is an aspect of "disposition of remains", which refers, in the most general sense,to what happens to the physical remains of a person when they die. This can include makingdecisions on such issues as:Will the body be buried, cremated, or donated to science? A subsidiary of this issue is whether ornot a persons organs will be donated (or whether their skull will be used as a prop in "Hamlet"
  2. 2. Where will the remains be laid to rest (specific cemetery, ashes dispersed at a given location etc)?What will the funeral be like? Who will be invited? What music will be played? Will there be areligious committal? Or will the body be laid to rest without any kind of ceremony? Typically, whena person dies, most, if not all decisions regarding the disposition of their remains will be made bytheir family or executor, often respecting the decedents wishes. But can a decedent control anyaspect of this? In some jurisdictions, the law has provided for the right of a person, while still alive,to determine the disposition of their remains, potentially against the will of their family. Forexample, according to Section 42 of the Quebec Civil Code, "A person of full age may determinethe nature of his funeral and the disposal of his body; a minor may also do so with the writtenconsent of the person having parental authority or his tutor." In Texas, one may appoint an agentto control the disposition of ones remains according to ones wishes, and the contract betweenthem cannot be overridden by the persons family. In Michigan on the other hand, while a personmay leave burial instructions, the next-of-kin may veto them.Even in places where it may be possible for a person to make binding general decisions aboutthese matters, there may be exceptions, particularly where a third party is involved. For example,in the case of an organ donor, a hospital may not remove the decedents organs if the familyobjects, even if the donor gave consent while alive. In the case of people who are entitled tospecial honours at their funeral (military, police, state etc), the family will sometimes want a privatefuneral and the outfit in question is likely to respect their wishes (for example, in 2006, animalexpert Steve Irwins widow rejected an offer of a state funeral by the Australian government) andmay not consider those of the deceased. One of the few references to the wishes of the deceasedthat I have found in this context is a rule stated on a German military-related website to the effectthat military funeral honours are to be rendered to those eligible only when the deceased veteranrequested them in a will or when the next-of-kin wishes it.Posthumous criminal pardonsA slightly more controversial issue is the concept of a posthumous criminal pardon. This is abelated attempt to forgive a convicted individual or right a wrongful conviction. Among the best-known cases of this occurring are: Galileio Galilei, the 16th-century Italian astronomer who wasconvicted by the Inquisition of teaching heresy (for his belief, now known to be correct, that theEarth revolves around the Sun). In 1992, Pope John Paul II publicly recognized that the Churchhad made an error in this case and expressed regret for it.Viola Desmond, the African-Nova Scotian who in 1946 refused to sit in the balcony reserved forblack people in a New Glasgow movie theatre, and was subsequently convicted of tax evasion. InApril 2010, the Lieutenant Governor of Nova Scotia granted Desmond a "free pardon", meaningthat the conviction was in error and thus officially invalid.
  3. 3. Billy the Kid, the famed Wild West outlaw who was killed by Sheriff Pat Garret. In 2010, theGovernor of New Mexico considered an application to pardon one of Billys murders following anallegation that Lew Wallace, the Governor in Billys time, had promised Billy a pardon for it inexchange for testifying in a court case, a promise that was never kept. The criminal pardon wasdenied on the grounds that there was historical ambiguity surrounding Wallaces promise.Should a decedent have a legal status?It may be tempting for survivors to claim that, once someone dies, they cease to have legalexistence and are reduced to a lifeless body that, no longer being able to act or think in any way,is nothing more than a piece of property to be disposed of. In general, I would disagree with this.As wishes regarding ones own affairs are considered paramount in a free society while alive, I seeno reason why they should not continue to have effect afterward, to the extent that they pertain tothe memory and legacy of that person. The case of wills is generally uncontroversial, as fewpeople would cast doubt on the value of letting a person make one last decision before they diewho should get their property. This is not only a right that most people would want to retain, butalso a practical matter as it relieves survivors of having to make the decision. One of the fewpotential controversies is to what extent, if any, ones family should be entitled to a share in thedecedents property.In the matter of funerals, there are two opposing philosophies. One is that it is the deceasedsfuneral and therefore they should have a right for their wishes to be respected, if expressed. Theother is that funerals are more for the living than for the dead, and that therefore the next-of-kinshould have the final say, taking into account what will be most comforting to the family andmourners. While I would agree that a funeral is for the living, in my arbitrary opinion, it is no lessfor the dead. The deceased may want to be remembered a certain way and may have personalmoral, religious or aesthetic opinions about anything pertaining to the disposition of their remains. Itherefore support laws which empower a person to make decisions regarding any matter ofdisposition of their remains, which, if lawful and not contrary to good morals, and made under aspecific legal instrument (e.g. the designation of an agent to carry out ones wishes) could not beoverridden by their next-of-kin. This would include allowing third parties to carry out thedeceaseds wishes; in the case of public-sector parties (e.g. when removing the organs of anorgan donor or rendering military funeral honours), I would even obligate them to do so.In the case of posthumous criminal pardons, their relative value to the deceased party isquestionable, as they cannot commute the sentence, nor will the pardoned person haveknowledge of the fact. Nonetheless, this gives an indisputable benefit to the persons memorybefore society, and is also a moral vehicle for society itself to at least recognize for its ownpurposes that a conviction was unjust. Further, if we apply logic analogous to that used in the caseof giving a person control over the disposition of their own remains, we can argue that the grantingof a criminal pardon to a deceased person for the purposes of forgiving or quashing a convictionretroactively serves the pardoned party themselves, for it is what they would have wanted while
  4. 4. alive.