One of the estate planning war stories we have shared regularly over the years involves how we assisted a man who was wanting to be cryogenically preserved for 350 years and the complex estate planning issues that arose.
One example of the type of issue to be considered - how do testamentary trusts assist when they can generally only last 80 years from the date of death (Answer: use an inter-vivos trust established under South Australian law, as there is no perpetuity period there).
One of the few reported decisions in this area is the UK case of Re JS (Disposal of Body) [2016] EWHC 2859 (Fam). As usual, if you would like a copy of the case please contact me - although please note the factual matrix is a particularly sad one involving a terminally ill young lady aged 14.
In granting the child's wish to undergo cryonic preservation, the court made a number of relevant comments in relation to body disposal, including:
- A dead body is not property and therefore cannot be disposed of by will.
- The legal personal representative of the deceased has the right to possession of (but no property in) the body and the duty to arrange for its proper disposal.
- While the concept of 'proper disposal' is not defined, it is clear that customs change over time.
- Under English law, there is no right to dictate the treatment of one's body after death - regardless of testamentary capacity or religion.
- While the wishes of the deceased are relevant (and perhaps highly so), they are not determinative and cannot bind third parties nor the court.
- Ultimately, the role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements.
** for the trainspotters, the title here is riffed from a John Cale song, first recorded by Nico, namely ‘Frozen Warnings’.
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