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rsa.esq
rsa.esq, Lawyer
Category: Legal
Satisfied Customers: 73
Experience:  Sworn to the California Bar in 2011. Former staff editor at The New York Times Co. and seasoned news professional of 20 years experience in the U.S. and abroad.
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Wife's brother (Marvin) had, several years ago, agreed to

Customer Question

Wife's brother (Marvin) had, several years ago, agreed to and paid for funeral services and a cemetary plot. In fairly-recent past, he had "changed his mind"; wishing to be cremated and buried in his parents' (both long-deceased) gravesite. Some written evidence, altho less than "notarized and absolutely conclusive", of the change of wishes, exists.
Same cemetary would be involved in either the original, or the revised, plan. When my wife (Judy) recently (around 10/7) contacted cemetary, it asserted that--absent conclusive evidence of the change--a court order would be necessary.
Marvin died around 1645(PDT) on 10/9. Judy definitely wants Marvin's revised wishes--for cremation and burial (of remains) in parents' gravesite--carried out.
As best I am aware, Judy has/had not contacted any California-licensed attorney; bar-association office appears to be closed until Monday. (We live in Las Vegas; she had gone to Anaheim with intent to negotiate the change of intentions).
We would like to have the revised wishes carried out. Assuming that we have "some", but less than absolute, written evidence of these, what is likelihood of getting this done short of a Court Order?
Submitted: 2 years ago.
Category: Legal
Customer: replied 2 years ago.
Marvin's mental capacity to enter into contracts had been, prior to time of original agreement and continuing thru his death, at best "questionable". Judy had, in practice, been acting as his guardian; no written documentation of her status as such, existed.
Expert:  rsa.esq replied 2 years ago.

Everything depends what's important: fulfilling brother's wished or money.

I can't give specific legal advice here, but speak of generally along the lines of these issues.

When it come to disturbing gravesites in contradiction of existing covenants, cemetery officials are probably most concerned with MONEY.

Is cemetery worried that brother's family will try and recover the money brother expended on the burial plot?

If the plot is already purchased, the deal is done and cannot be undone unless brother lacked contractual capacity at the time he bought the plot. If the family's issue is not about money, but only about fulfilling brothers burial wishes, assurances of that, even to the extent of a legal release precluding any future attempt to vitiate the burial plot deal.

Obviously, if the family intends, or may at some future time, to try to recover the money for the burial plot, they should not sign a release of their right to do so.

The other money pit for the cemetery would be cemetery's potential liability for intentional or negligent infliction of emotional distress for disturbing corporeal remains -- i.e. mishandling corpses. Intentional mishandling is subject to liability as an intentional tort, and even negligent mishandling generally carries inevitable and automatic liability in negligence, and so the cemetery is probably seeking to insulate itself from all such tort liability (lawsuits!).

Are there other siblings or relatives that might object (or file a lawsuit) to the parents' gravesite being disturbed to the point of interring brother's ashes?

If not, cemetery officials may accept affidavits -- along with what illustrations of brother's intent available -- to that effect to convince the cemetery they will not be subject to any tort liability from any living family members.

If the prime concern is fulfilling brother's wishes, then signing releases of liability may satisfy the cemetery.

HOWEVER, if the family wishes to preserve the issue contesting the purchase of the burial plot or does not want to relinquish potential causes of tort action, then obviously legal releases giving up llegal rights should NOT be signed.