In Miller v. Miller, 2018 ONSC 6625 the children of the deceased strongly disagreed over where their mother should be buried. Five siblings sought an urgent interim injunction to prevent their brother from burying Ms. Miller in Toronto until an estate trustee could be appointed by the court.
After the death of her husband, Aniseth Miller moved from Jamaica to Toronto, where she lived with her son, Gary Miller. Ms. Miller died on October 9, 2018 and Gary promptly arranged to have his mother buried in Toronto.
The dispute arose because Gary's siblings claim that their mother wished to be buried in Jamaica next to her husband. Corpses don't have rights, so it falls to the estate trustee to dispose of the deceased's body in a dignified manner. Ms. Miller died without a will and no estate trustee had been appointed by the court (under s. 29 of the Estates Act).
Gary's siblings applied to court for an urgent interim injunction preventing him from holding the funeral and burying their mother until an estate trustee can be appointed.
Under s. 101 of the Court of Justice Act, the court can grant the requested interim injunction if:
- There is a serious question to be tried in the proceeding
- The applicants will suffer irreparable harm if they have to wait for a final decision (i.e. harm that cannot be reasily compensated by damages)
- The balance of convenience favours granting an injunction
Analysis and Decision
F.L. Myers J. granted the requested injunction based on the following reasoning:
- The absence of a will means that there is a serious issue regarding who should be appointed estate trustee.
- Gary's siblings would suffer irreparable harm if denied an injunction, because even if their application succeeds, they will have lost the opportunity to enforce their rights and prevent the burial planned by Gary.
- The inconvenience of delaying the funeral is outweighed by the need to determine who is the estate trustee (and therefore where Ms. Miller is buried).