FORMAL OPINION DATE: August 13, 1993
SUBJECT: Directions by a Decedent Regarding Funeral Arrangements in a Preneed Contract or Authorization Form for Cremation
REQUESTED BY: Mr. William R. Hoke, Attorney for the North Carolina State Board of Mortuary Science
QUESTIONS:
. Assuming that the decedent does not address funeral, burial, cremation, etc. matters in a will, does a preneed funeral contract, defined in G.S. § 90-210.60(5), executed by the decedent for his own arrangements, overrule, following the decedent’s death, the conflicting wishes of the decedent’s next of kin?
. Again, assuming that the will, if any, does not speak to the issue, does a decedent’s signing a funeral home’s or crematory’s authorization form, authorizing the decedent’s own cremation, overrule the conflicting wishes of the "authorizing agents", as defined in G.S. § 90-210.41?
CONCLUSIONS:
. Yes
. Yes
DISCUSSION:
At the outset it is helpful to begin with a review of the common law as to the effect to be given the expressions of the decedent with regard to the disposition of his or her dead body.
Some courts appear to acknowledge that a preference expressed by a decedent with regard to the disposition of his dead body should normally be given precedence over other interests, while others have taken the contrary position that the decedent’s preference as to the disposition of his body after death is normally subordinate to the wishes of his surviving spouse or next of kin. However, a number of courts have recognized that the weight to be accorded to the decedent’s preference must be determined on a case by case basis, in light of all relevant circumstances, and after an evaluation of all competing interests.
22A Am Jur 2d Dead Bodies § 30.
Effect of deceased’s preference. It is generally recognized that every person has the right to determine the disposition which shall be made of his body after death, and in some states the right is conferred by statute, and it has been said that the wishes of a decedent with respect to the disposition of his remains are paramount. Decedent’s right to determine the disposition which shall be made of his remains is a personal right, and not testamentary in character, since there is no property right in a dead body, in the ordinary sense, as stated supra § 2. It has been stated that the general rule is that, while legal compulsion may not attach to the wishes or directions of a decedent as to his interment, they are entitled to respectful consideration and are accorded great weight, and ordinarily the courts will give effect to them if possible, even in the face of opposition by the surviving spouse or the next of kin. It has, however, been held to be an open question whether the desires of the decedent should prevail against those of a surviving spouse.
Where the directions given by decedent as to the disposition of his body cannot be carried out, it may be proper for an interested party to seek the guidance of the court, and the court may direct what disposition of the body should be made, and may direct a disposition which is in accordance with the wishes of the surviving spouse or next of kin.
No particular formality is required in directing the disposition of one’s remains, but such directions may be parol, the last wish controlling, and whether the deceased did indicate a preference or leave directions is a fact question to be determined under the ordinary rules of evidence.
25A CJS Dead Bodies § 3 pp 493, 494.
From the above it appears that there is a divergence in the two authorities with CJS favoring the expressions by a decedent and Am Jur following the more traditional view which is said to be based on the belief that a decedent, being dead, cannot own any property right in a body, 7 ALR3d 747 (1966). The above discussions both note that any general rule may have to be altered in a particular case due to unusual circumstances.
Turning to North Carolina law, N.C.G.S. § 28A-13-1 expressly authorizes the personal representative of a decedent’s estate to carry out the decedent’s written instructions even prior to the personal representative’s appointment as executor.
Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral and burial arrangements . . . .
N.C.G.S. § 28A-13-1.
The case of Dumochelle v. Duke University, 69 N.C. App. 471, 317 S.E.2d 100 (1984) involved the following facts.
Plaintiff’s mother, a Florida resident, died in defendant’s hospital on 5 September 1980. Upon learning of their mother’s death, plaintiffs paid $200.00 and instructed defendant to cremate the body. Plaintiffs then drove to Florida, where they discovered their mother’s will and learned for the first time that it was Mrs. Post’s wish to be buried in Ohio. Plaintiffs did not attempt to cancel the cremation as they believed it had already been completed. Plaintiffs then contacted Robert Randolph, Mrs. Post’s grandson, and told him that he had been named executor of the will, but did not inform him of the provision for burial in Ohio.
During her life Mrs. Post told Randolph she wanted to be buried in Ohio, and on learning of her death, Randolph telephoned defendant and cancelled the cremation. It is unclear whether Randolph told defendant that the change in funeral plans was due to his personal wishes or those of Mrs. Post. Defendant did not contact plaintiffs or consult them before carrying out Randolph’s instructions to have the body shipped to Ohio for burial. Plaintiffs learned of the change in plans about two months later.
69 N.C. App. at 473, 317 S.E.2d at 100.
The opinion in the case included the following discussion.
Plaintiffs’ argument rests upon the proposition that a decedent’s nearest next-of-kin have final authority over funeral arrangements. As a general rule, the next-of-kin have the right to possess the body of a decedent for the purpose of burial. Parker v. Quinn-McGowen Co., supra. The issue of whether the wishes of the decedent concerning burial may prevail over those of the next-of-kin has never been directly addressed by the courts of our state. There is authority, however, for the proposition that a testamentary provision concerning burial should override contrary wishes of the decedent’s next-of-kin. In Kyles v. R.R., 147 N.C. 394, 61 S.E. 278 (1908) our supreme court noted in dicta that "[t]he right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin . . . " Although the foregoing language was dicta, it has been cited with approval by our supreme court in at least one later case, Floyd v. R.R., 167 N.C. 55, 83 S.E. 12 (1914) and we see no reason to adopt a contrary rule today.
69 N.C. App. at 474, 317 S.E.2d at 103 (alteration in original).
The Court of Appeals then discusses the import of N.C.G.S. § 28A-13-1 and N.C.G.S. § 130A406 (relating to anatomical gifts) to the effect that directions in the decedent’s will may be given effect prior to probate of the will. The Court holds:
Based on the foregoing discussion, we hold that a testamentary provision directing disposition of the testator’s body must prevail over conflicting wishes of the testator’s next-of-kin. It follows that the next-of-kin in such a case have no right to possession of the body for the purpose of selecting funeral arrangements and therefore they have no standing to sue defendant for negligence for its failure to carry out the cremation of Mrs. Post’s body. Accord, O’Dea v. Mitchell, 350 Mass. 163, 213 N.E. 2d 870 (1966).
69 N.C. App. at 476, 317 S.E.2d at 104.
The express holding of the Doumouchelle case is limited to testamentary provisions by the decedent despite the facts of the case that the directions followed by the defendant hospital were the directions given orally by the decedent to her grandson and relayed telephonically by him to the defendant hospital. Because the holding is limited to testamentary provisions, the case does not directly answer the questions presented; however, a footnote is pertinent.
Although we only decide today that a written testamentary provision overrules conflicting wishes of the next-of-kin concerning disposition of the testator’s body, we note that G.S. § 28A-13-1 permits the personal representative of the deceased to carry out written instructions pertaining to disposition of the body, whether they appear in a will or not . . . .
69 N.C. App. 476, 317 S.E.2d at 104 (emphasis added).
Neither Article 13C (cremations) nor Article 13D (preneed contracts) of Chapter 90 of the General Statutes addresses the central issue in both of the questions presented, i.e., the relative weight to be given to the written expressions of the decedent regarding funeral arrangements where the surviving spouse or next of kin have contrary desires. However, those statutes, similar to the statutes relating to anatomical gifts, do recognize and authorize written instruments (preneed funeral contracts and cremation authorization forms) which may be used for the purpose of giving directions for the disposition of a dead body. Although clearly dicta, the language of the footnote from Doumouchelle interprets N.C.G.S. § 28A-13-1 to authorize the following of the decedent’s non-testamentary written directions by his or her executor.
In light of the apparent view of the Court of Appeals that written non-testamentary expressions by the decedent may be given effect and the statutory recognition by the General Assembly of a preneed funeral arrangement contract as a method to express a decedent’s desires, we conclude that generally a preneed licensee or a crematory operator should follow the written directions of the decedent in a preneed funeral contract or in a cremation authorization form signed by the decedent, despite contrary directions from a surviving spouse or the decedent’s next of kin.
MICHAEL F. EASLEY Attorney General
Charles J. Murray
Special Deputy Attorney General