Thank You For Submiting Feedback!
Provisions in a will regarding burial instructions are not conclusive of a testator's intent, and a trial court may take evidence that the testator changed his or her mind regarding disposition of his body.
The decedent, Hilliard Cohen, executed a will requesting a burial in his family's plot in New York. Years later, the decedent and his wife moved to Florida. The decedent expressed a desire to his wife and his daughter to be buried with his wife. At first, he wished to be buried with her in New York. Later, he agreed to be buried with her in Florida. The decedent also expressed this desire to a doctor who examined him for competency. In all of his verbal expressions on the matter, the decedent expressed a desire for burial in a place where his wife could also rest upon her death. This could not have occurred if he were buried in the family plot, because, while the decedent was Jewish, his wife was not. The trial court ordered the decedent to be buried in a Florida cemetery. The brother and sister of the decedent appealed.
Should the burial provisions of the decedent’s will be enforced, notwithstanding the verbal expressions of the decedent regarding the matter?
On appeal, the court found that, in Florida, while the decedent's will was construed to pass all property that he owned at death, under Fla. Stat. ch. 732.6005(2), the decedent's body was not considered property. Therefore, the directive in the will regarding the disposition of the decedent's body did not have the same force and effect as the provisions directing the disposition of his property. The trial court could take evidence that the decedent changed his mind regarding the burial of his body. Accordingly, the judgment was affirmed.