Can two churches disinter and remove cremains (cremated remains) from a burial ground without the consent of the families involved? Reversing a judgment from the Probate Court, The Massachusetts Appeals Court found for the families and held that the remains could not be removed. Legal experts summarize the case.
The Promise of Perpetual Care
According to law experts at Goulston & Storrs , the Episcopal parish of the Church of the Holy Spirit of Wayland had a burial ground dating from 1966, with lots sold to parishioners who had the right to bury two cremains in each purchased lot, with an agreement promising “perpetual care” and a stated prohibition of disinterment without consent. When the Church of the Holy Spirit closed in 2015, a Coptic church bought the property above the asking price. However, since cremation is against Coptic religious beliefs, the two Churches jointly filed an equity action in Probate Court seeking “to obtain judicial permission to disinter the cremains.” The Probate Court granted permission to disinter and relocate the cremains. Although not all of the 56 families involved could be located and contacted, many were, and some appealed the decision of the Probate Court. JD Supra shares this summation of The Appeals Court findings:
First, the Court found that the contract between the parties (the Certificate of Purchase) did not allow the parish to unilaterally disinter the cremains. Having promised perpetual care in the Certificate of Purchase, the Court found that the parties intended to have the burial ground be the deceased’s final resting place. Second, the Court held that in the absence of a statute, common law trust principles apply to the disinterment of human remains from a dedicated burial ground until the families of the deceased have abandoned the remains or the burial ground is no longer recognizable as such. Third, because the Churches precipitated the sale, the Court was unpersuaded by their argument that the change in circumstance prevented the fulfillment of the trust purposes at issue or rendered it impossible to fulfill the families’ interest in having their loved ones’ remains stay in the location agreed upon by the parties.
The Appeals Court also ruled “that disallowing disinterment did not violate the Coptic church’s right of the free exercise of religion. Having freely taken title to the property with the cremated remains already in the ground, the Court reasoned the Coptic church would not have to actively do anything in violation of its religious rights.” In reversing the judgment and remanding the case, the Court noted the decision “leaves many issues unresolved including the parties’ specific rights and obligations with respect to the maintenance of the burial lots and the families’ access to them.”
Good To Know: Appeal Bonds Explained
It’s worth knowing that when there are grounds for appeal, courts frequently require the procurement of an appeal bond, which in some states is called a supersedeas bond. Essentially, an appeal bond acts as a guarantee that the initial judgment will be honored if the appeal ultimately fails. Appeal bonds can also help keep frivolous cases from clogging our systems. Learn more about appeal and supersedeas bonds with this short video.
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