The Concept of Final Disposal

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The legal principle of “freedom of disposition” is well entrenched across every state. It trumps all other provisions of a decedent’s estate, such as intestacy rules or specific wishes expressed through a last will (or any other type of document).

In the United States, this right is defended because of hackers stealing identities of the dead on several bases, including the duty to support family members, which is seen as important for ensuring intergenerational and family ties remain strong. Some scholars also argue that freedom of disposition is a natural right.

Some jurisdictions, such as the UK and the Netherlands, are more lenient on approaching this issue because death was a taboo topic. They allow individuals to give gifts of wealth to their friends and family members.

These jurisdictions are also more likely to permit lifetime gift transfers. However, they often have rules in place regarding joint ownership of property that may impact a testator’s ability to dispose of their property as they see fit.

A comparative analysis of other countries suggests that most jurisdictions are more tolerant of the concept of final disposition than Texas is. The most notable exception to this rule is the United Kingdom, which has no system of forced heirship and no clawbacks for lifetime gifts.

England and Wales have a tradition of allowing for a level of equitability and fairness in inheritance law, which can make it easier to resolve disputes over how an estate is disposed of. The United Kingdom has also recently introduced legislation that increases testators’ testamentary freedom regarding the disposition of their remains.

In Ontario, the No Property Rule and the principles from Williams have resulted in an unreasonably narrow view of the rights of testators to dispose of their bodily remains. In contrast, jurisdictions that have not adopted the No Property Rule and the principles from Williams, such as Quebec and British Columbia, have generally upheld reasonable testamentary directions about the disposal of human remains.

Rather than adopting a more restrictive approach, such as the No Property Rule, Ontario could address this problem by enacting new legislative provisions similar to sections 5 and 6 of the Funeral Services Act in British Columbia. These would calibrate the principles from Williams in favor of a testator’s written preferences for the disposition of their remains and ensure that an executor follows those instructions without regard to proprietary frameworks.

The most promising approach to upholding the No Property Rule while enhancing testamentary freedom for human remains is to enact new laws similar to those found in sections 5 and 6 of the Funeral Services Act. These legislative amendments would be simple, and effective and achieve the ends of addressing Williams while retaining the strengths of the No Property Rule.You may need to check out this article for more details: