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Wednesday, February 28, 2007

WILL UNAMBIGUOUS DIRECTIONS IN A LAST WILL AVOID ALL DISPUTES OVER BURIAL INSTRUCTIONS?

Last week the Florida court spectacle of where the bodily remains of Anna Nicole Smith should be laid to rest dominated the airwaves and newspapers. This high profile case begs the question whether the court hearing could have been avoided if Anna Nicole Smith had clearly and uniquivocally given burial instructions in her Last Will.

In Florida, the answer appears to be no. The leading Florida case on the issue is Cohen v. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005). Several principles relating to burial/disposition of bodily remains instructions can be gleaned from the case.

First, in the absence of a testamentary disposition in the Last Will, the spouse of the deceased or the next of kin has the right to the possession of a body for burial or other lawful disposition. Thus, where such relatives exist, their desires take precedence over the desire of the appointed Personal Representative/Executor.

Second, when the decedent has expressed his intention as to the disposition of bodily remains in the Last Will, the court should generally follow this expressed intent.

Lastly, however, the court is not uniquivocally bound by the Last Will. If a contrary intent of the deceased can be shown by clear and convincing evidence, the court can overide the intent as expressed in the Last Will. Therefore, even if Anna Nicole Smith's Last Will was very clear on her desires, the court was still obligated to consider and weigh any evidence that indicated a change of intent by Ms. Smith.

Of course, a testator with desires on the subject should place his intent in his Last Will, since the burden will be on others to show a later change in intent to overide these wishes. When there are concerns about relatives seeking to override his or her intent, additional or periodic ratifications of such intent may also be helpful.

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