Here is a true story: shortly before moving back to the old country, the grandmother of a young Canadian from an immigrant family was upset. She told her grandson that she had expressed a wish that, when she died, she would be buried in the hometown of some relatives that she had recently been reunited with, but her daughter – his mother – was opposed to this. She was very bitter about the matter; her grandson told her not to be, but to consult with a lawyer about making her own funeral arrangements when she went back. After she returned to the old country, the grandson spoke with her and she told him that she had bought a grave and pre-arranged a funeral ceremony in the location of her choice. This anecdote, among other things, has prompted me to study the following question: when a person dies, do they continue to have any legal subjectivity?

Wills

Probably the most enshrined and long-held right of a person respecting their death is the power to make a will. Generally speaking, in the civilized world, at least, anyone with full legal capacity may write a will, by which they may not only dispose of their property more or less as they choose, but also do things like naming a guardian for their children. The right to do this is firmly entrenched across the world; in most “common law” jurisdictions, there are few, if any restrictions on how a person may dispose of their property in a will, although in many “civil law” countries, one’s spouse and children are legally entitled to a set portion of the estate.

Disposition of remains

Probably the most enshrined and long-held right of a person respecting their death is the power to make a will. Generally speaking, in the civilized world, at least, anyone with full legal capacity may write a will, by which they may not only dispose of their property more or less as they choose, but also do things like naming a guardian for their children. The right to do this is firmly entrenched across the world; in most “common law” jurisdictions, there are few, if any restrictions on how a person may dispose of their property in a will, although in many “civil law” countries, one’s spouse and children are legally entitled to a set portion of the estate.

The example already given of a conflict between a person’s burial wishes and those of their immediate 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 making decisions on such issues as:

• Will the body be buried, cremated, or donated to science? A subsidiary of this issue is whether or not a person’s organs will be donated (or whether their skull will be used as a prop in “Hamlet”).

• 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 a religious committal? Or will the body be laid to rest without any kind of ceremony?

Typically, when a person dies, most, if not all decisions regarding the disposition of their remains will be made by their family or executor, often respecting the decedent’s wishes. But can a decedent control any aspect 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. For example, according to Section 42 of the Quebec Civil Code, “A person of full age may determine the nature of his funeral and the disposal of his body; a minor may also do so with the written consent of the person having parental authority or his tutor.” In Texas, one may appoint an agent to control the disposition of one’s remains according to one’s wishes, and the contract between them cannot be overridden by the person’s family. In Michigan on the other hand, while a person may 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 about these 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 decedent’s organs if the family objects, even if the donor gave consent while alive. In the case of people who are entitled to special honours at their funeral (military, police, state etc), the family will sometimes want a private funeral and the outfit in question is likely to respect their wishes (for example, in 2006, animal expert Steve Irwin’s widow rejected an offer of a state funeral by the Australian government) and may not consider those of the deceased. One of the few references to the wishes of the deceased that I have found in this context is a rule stated on a German military-related website to the effect that military funeral honours are to be rendered to those eligible only when the deceased veteran requested them in a will or when the next-of-kin wishes it.

Posthumous criminal pardons

A slightly more controversial issue is the concept of a posthumous criminal pardon. This is a belated 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 was convicted by the Inquisition of teaching heresy (for his belief, now known to be correct, that the Earth revolves around the Sun). In 1992, Pope John Paul II publicly recognized that the Church had 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 for black people in a New Glasgow movie theatre, and was subsequently convicted of tax evasion. In April 2010, the Lieutenant Governor of Nova Scotia granted Desmond a “free pardon”, meaning that the conviction was in error and thus officially invalid.

• Billy the Kid, the famed Wild West outlaw who was killed by Sheriff Pat Garret. In 2010, the Governor of New Mexico considered an application to pardon one of Billy’s murders following an allegation that Lew Wallace, the Governor in Billy’s time, had promised Billy a pardon for it in exchange for testifying in a court case, a promise that was never kept. The criminal pardon was denied on the grounds that there was historical ambiguity surrounding Wallace’s promise.

Should a decedent have a legal status?

It may be tempting for survivors to claim that, once someone dies, they cease to have legal existence 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 one’s own affairs are considered paramount in a free society while alive, I see no reason why they should not continue to have effect afterward, to the extent that they pertain to the memory and legacy of that person. The case of wills is generally uncontroversial, as few people would cast doubt on the value of letting a person make one last decision before they die – who should get their property. This is not only a right that most people would want to retain, but also a practical matter as it relieves survivors of having to make the decision. One of the few potential controversies is to what extent, if any, one’s family should be entitled to a share in the decedent’s property.

In the matter of funerals, there are two opposing philosophies. One is that it is the deceased’s funeral and therefore they should have a right for their wishes to be respected, if expressed. The other is that funerals are more for the living than for the dead, and that therefore the next-of-kin should have the final say, taking into account what will be most comforting to the family and mourners. While I would agree that a funeral is for the living, in my arbitrary opinion, it is no less for the dead. The deceased may want to be remembered a certain way and may have personal moral, religious or aesthetic opinions about anything pertaining to the disposition of their remains. I therefore support laws which empower a person to make decisions regarding any matter of disposition of their remains, which, if lawful and not contrary to good morals, and made under a specific legal instrument (e.g. the designation of an agent to carry out one’s wishes) could not be overridden by their next-of-kin. This would include allowing third parties to carry out the deceased’s wishes; in the case of public-sector parties (e.g. when removing the organs of an organ 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 is questionable, as they cannot commute the sentence, nor will the pardoned person have knowledge of the fact. Nonetheless, this gives an indisputable benefit to the person’s memory before society, and is also a moral vehicle for society itself to at least recognize for its own purposes that a conviction was unjust. Further, if we apply logic analogous to that used in the case of giving a person control over the disposition of their own remains, we can argue that the granting of a criminal pardon to a deceased person for the purposes of forgiving or quashing a conviction retroactively serves the pardoned party themselves, for it is what they would have wanted while alive.

Ned Lecic works for a criminal pardons agency and has a broad interest in the law.

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