It is one of the most sensitive legal questions that arises after a death: who actually controls a deceased person’s body? Families often assume that the next of kin “owns” the body or that a person’s written burial wishes must be followed. In fact, Canadian law says otherwise.
The short answer is that no one owns a body after death. Control belongs to the person who has the legal duty to ensure proper burial or cremation, usually the estate trustee or executor. The deceased person’s wishes are important guidance, but they are not legally binding.
This principle dates back centuries and remains the foundation of Canadian law today. As Christopher Cates explains in Property in Human Tissues: History, Society and Possible Implementations (1998), the common law has always drawn a sharp distinction between property and the human body. While property can be owned, inherited, or sold, a deceased person’s body exists outside the realm of ownership.
The “No Property” Rule
The “no property” rule, which originated in English common law and was adopted in Canada, establishes that a corpse is not considered property and cannot be owned, inherited, or sold. This principle was affirmed in the landmark case of Williams v. Williams (1882), 20 Chancery Division 659 (England Chancery Division), where the court held that a deceased person’s instructions regarding the disposal of their body are not legally binding. The court confirmed that a person cannot bequeath their body because “there is no property in a human corpse.”
Executors or estate trustees are responsible for ensuring the lawful and dignified disposal of the body, but their authority is one of duty and custody, not ownership. They are not bound to carry out the testator’s burial instructions. Canadian courts, including Hunter v. Hunter (1930), 65 Ontario Law Reports 586, [1930] 4 Dominion Law Reports 255 (Ontario High Court of Justice), have consistently upheld this principle, confirming that the executor has the final authority over burial or cremation arrangements, even if the deceased’s family or written instructions suggest otherwise.
Control Without Ownership
Because there is no ownership, the law focuses on who carries the legal duty. If there is a valid will, the executor has the right to possession of the body for the purpose of burial or cremation. If there is no will, the person whom the court later appoints as estate trustee without a will assumes that duty. Until the appointment is made, the closest next of kin, such as a spouse, adult child, or parent, acts out of necessity to make timely funeral arrangements.
This control carries practical importance. The executor has the final authority over the manner and place of disposition, even if the family disagrees or if the deceased person’s written instructions suggest something different. As long as the executor’s decision is lawful and dignified, it will prevail over family disagreements or contrary instructions from the deceased, as confirmed in Bedont Estate (Re), [2004] Ontario Judgments No 4267 (Superior Court of Justice).
Statutory Reinforcement
Canadian and Ontario legislation reinforce the common law position. Statutes such as the Coroners Act, RSO 1990, authorize coroners to take possession of a body for investigation or to remove certain organs for medical purposes when necessary, unless the deceased or the family objects. The Anatomy Act, RSO 1990, requires consent from the next of kin for the donation of a body to medical science, even if the deceased person expressed a prior intent to donate. The Human Tissue Gift Act, RSO 1990, prohibits any buying or selling of human tissue for valuable consideration.
Together, these laws regulate the investigation, use, and donation of human bodies, but none recognize property rights in a corpse. They allocate control and permission (such as who may authorize an autopsy, donate organs, or release a body) but they do not establish ownership.
Burial Wishes: Persuasive but Not Binding
It often surprises people to learn that burial or cremation instructions in a will are not enforceable. The reasoning is straightforward: because the deceased person does not own the body, they cannot dictate its treatment after death.
Still, the executor or estate trustee should take those wishes seriously. Courts have stated that the personal representative should act “reasonably and with proper regard to the known wishes of the deceased” (Williams v. Williams, supra). Following those wishes, where feasible, demonstrates respect and can reduce family conflict. However, when disputes arise, the executor’s legal duty to dispose of the remains prevails.
For example, if a will requests burial in another country and that request is impractical or contrary to family or estate finances, the executor may choose a local burial instead. The decision may cause disagreement, but it will not be unlawful.
The Policy Behind the Rule
Christopher Cates argues that the “no property” rule reflects deep moral and policy concerns. Recognizing ownership in human bodies could lead to the commodification of the dead, disputes over inheritance of remains, or even trade in organs.² By limiting rights to duties, the law preserves human dignity while ensuring public order.
This principle extends beyond the deceased. Even for living persons, Canadian law resists treating the body as property. Courts allow compensation for injury or loss through tort law, but that is a method of valuing damages, not a recognition of ownership. Legislatures and courts prefer to frame all human-body issues in terms of consent, control, and respect, not property rights.
What This Means in Practice
For funeral directors and families alike, the rule has clear consequences:
- No one owns a body.
- The person with the legal duty, usually the executor or estate trustee, has custody and control solely for burial or cremation.
- The deceased person’s burial wishes are persuasive but not legally binding.
- Statutory powers, such as those of coroners or organ donation laws, may override private preferences.
In short, control flows from responsibility, not ownership.
Conclusion
The law’s reluctance to find property rights in human remains reflects long-standing public policy and moral considerations. Allowing ownership of remains could lead to the commercialization of human tissue, which is prohibited under statutes such as the Human Tissue Gift Act. This prohibition underscores the principle that human bodies exist outside the realm of property and ownership.
In Canada, the “no property” rule continues to prevail. Control over a deceased person’s body rests with the executor or estate trustee responsible for burial or cremation. While the deceased’s wishes may provide important guidance, they are not legally binding, and the executor’s decisions will be upheld as long as they comply with legal and ethical standards.
References
- Christopher Cates, “Property in Human Tissues: History, Society and Possible Implementations” (1998) 4 Appeal: Review of Current Law and Law Reform 32.
- Williams v. Williams (1882), 20 Chancery Division 659 (England Chancery Division).
- Hunter v. Hunter (1930), 65 Ontario Law Reports 586, [1930] 4 Dominion Law Reports 255 (Ontario High Court of Justice).
- Bedont Estate (Re), [2004] Ontario Judgments No 4267 (Superior Court of Justice).
- Coroners Act, RSO 1990, Chapter C.37.
- Anatomy Act, RSO 1990, Chapter A.21.
- Human Tissue Gift Act, RSO 1990, Chapter H.20.
PLEASE NOTE: The content of this blog is provided for informational purposes only and does not constitute legal advice. Reading this material does not create a solicitor-client relationship. This information has been prepared in accordance with the laws currently applicable in Ontario and may not reflect future legal developments.
