Can you legally arrange to be buried with your teddy bear in one hand and your favorite comic book in the other, wearing your Michael Jordan jersey and your gold wedding band? Would it matter if none of your beneficiaries wanted any of these items and would just sell them as quickly as possible? What if the items had a combined value of over $15 million? See Juliene Kim, A Michael Jordan Jersey Is Sold for over $10 Million, Setting a World Record, NPR (Sept. 16, 2023), https://tinyurl.com/2yufkhaj; The 16 Most Expensive Comic Books Ever Sold, CGC Comics (Jul. 14, 2022), https://tinyurl.com/34xv2dwk (reporting a sale of Superman #1 for $5.3 million); Cheyenne Lentz, 12 Teddy Bears That Are Worth a Fortune (Sept. 6, 2018), insider.com (reporting a Steiff teddy bear sale for $143,000). What if their combined value was under $1,000? What if all you wanted was 10 $100 bills stuffed in your pocket just before they seal the casket?
Part 1 (37 Prob. & Prop. (Nov/Dec 2023) at 44) explored client motives for such last requests, described real life (and death) fact patterns, set forth the argument that such directions are void because they encourage grave robbing, and discussed techniques estate planners might use to counter the grave robbing argument, including avoiding public disclosure. This Part 2 explains why this is a difficult practical and legal area, sets forth the argument that these directions are void because they violate public policy by wasting property, and discusses what estate planners might recommend in response. Although this Part 2 often refers to the client’s “will,” as discussed in Part 1, the client and estate planner may choose to include the direction in a nonpublic document incorporated by reference into the client’s will.
Timing Mismatch Between Burying the Body and Dealing with Property. We bury the dead promptly. Most funerals in North America are conducted in one week, or two weeks if circumstances require a delay. How Long Can You Delay a Funeral?, Beyond the Dash (May 12, 2021), https://tinyurl.com/3ctc848m. The client’s religious affiliation may require burial within a day if it prohibits embalming, such as with Muslim and traditional Jewish funeral practices. See id. (“[A]fter 24 hours the body will need some level of embalming.”).
State statutes and common laws facilitate fast burial by immediately authorizing a living person (usually the surviving spouse and then the next of kin) to make arrangements for the burial, cremation, or other appropriate disposition. Tanya D. Marsh, You Can’t Always Get What You Want: Inconsistent State Statutes Frustrate Decedent Control over Funeral Planning, 55 Real Prop. Tr. & Est. L.J. 147 (2020). In addition to the method of disposition, this authority also extends to choices for the funeral, casket, tombstone, and the funeral home or other provider. This immediate authorization helps “relieve . . . funeral professionals from liability.” Id. at 161.
In regard to the decedent’s ability to direct or influence the method of disposition and related matters, 42 states have statutes granting “the decedent . . . the right to express a personal preference regarding the disposition of [their] remains,” usually under a last will, but “[o]nly six states . . . expressly grant decedents a statutory right to determine the disposition of their own remains.” Id. (listing Arizona, Florida, Kansas, New York, Oklahoma, and South Dakota) (emphasis added). Forty-eight states have a statute allowing the decedent to designate an agent to exercise this “right of sepulture,” id. at 163–64, and the “vast majority of states” have a statute that determines who shall take custody and control of remains if the decedent neither gave instructions nor designated an agent. Id. at 163 (authorizing the surviving spouse, and then the next of kin in most circumstances).
In contrast to the fast burial process, transferring property under the decedent’s last will, through the probate system, can be slow. The total probate process, involving filings with the court, protecting and investing the assets, notifying the interested parties, paying debts, settling claims, filing tax returns, and, after all other steps, transferring the decedent’s property can often take a year or longer. Depending on the jurisdiction, it may take the local probate court weeks (or even a month or more) just to issue letters testamentary appointing the executor, who will have the authority to deal with the decedent’s property. Thus, although a decedent may state his funeral and other burial instructions in his last will, the decedent likely will be buried before the will is admitted to probate and before the court authorizes an executor, and long before the executor will make substantial transfers of property.
Planning for Temporary Storage. One response to the need to bury the body quickly, and deal with the property slowly, might be to authorize or prearrange temporary storage of the body until issues regarding the burial of property in the decedent’s casket are resolved. For example, in the “famous Ferrari” unreported case from 1977, Sandra Ilene West directed in her last will that she be buried in one of her Ferrari autos. While those involved waited for an order from the court, Sandra’s body was held temporarily in a mausoleum in Los Angeles. Timothy Fanning, Bury Me in My Ferrari, San Antonio Express-News (Mar. 22, 2023), https://tinyurl.com/28yxrjfs. After the California judge concluded there was “no law preventing . . . burial in [a] Ferrari,” see Sports Car Burial OK, Evening News (Newburgh, N.Y.), Apr. 12, 1977, at A1, Sandra’s body was removed from the L.A. mausoleum, and Sandra and her Ferrari were buried in a San Antonio, Texas, grave 17 feet long, 9 feet across, and 9 feet deep, next to her predeceased husband.
Relying on the Living and Considering If They Must Comply. A decedent must rely on the living to carry out her burial requests for obvious reasons. As a result, the testator and the estate planner need to consider whether a living beneficiary with possession of the prized item will be required, allowed, or prohibited from placing it in the casket and will be motivated to insert.
Because of the scarcity of legal authority regarding a last request to bury a prized possession, the rules for traditional burial and funeral arrangements may be instructive. The law surrounding even these traditional matters is convoluted. Generally, an executor is obligated to follow the terms of the decedent’s will. Matter of Estate of Sandefur, 413 N.E.2d 309, 311 (Ind. Ct. App. 1980) (discussing the “duty to defend the will”). Also, conditions imposed upon a bequest generally are enforceable unless they violate public policy. Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 1999 U. Ill L. Rev. 1273, 1276. In addition, state statutes and common laws generally recognize a decedent’s right to dispose of his property at death as he wishes by a last will. See In re Caper’s Estate, 34 Pa. D. & C.2d 121, 138 (Orphan’s Ct. 1964) (concluding, however, that a direction in the decedent’s will to kill his two pet Irish setter dogs upon his death did not qualify as a “disposition”).
We bury bodies quickly, however, and there generally will be no court-appointed executor with legal obligations at the time of burial. As discussed above, state laws clearly designate who has authority to dispose of the remains, but that person typically is obligated only to make a respectful (or decent) disposition consistent with social norms. Often, a beneficiary will incur the burial and funeral expenses, and a legal question will be whether those expenses were a proper charge against the decedent’s property (and if the beneficiary used her own money, whether she should be reimbursed from estate property). Indeed, funeral and burial expenses, and the cost of a tombstone, often are included in the definition of “claims” against the estate. See, e g., Unif. Prob. Code § 1.201(6); Mo. Rev. Stat. § 472.010(3).
In regard to the testator’s ability to control the nature and amount of his burial and funeral expenses, a leading treatise indicates that such a direction may be carried out only if it is reasonable. 22 Am. Jur. 2d Dead Bodies § 27 (2023 update). This approach is consistent with the law of certain honorary trusts. It allows the testator to create a power exercisable by the living, but it does not allow the decedent to create a legal obligation. See Adam J. Hirsch, Bequests for Purposes: A Unified Theory, 56 Wash. & Lee L. Rev. 33, 46, 52, 56 (1999) (referring to directions to spend money post-mortem on a mausoleum or a tomb, or to pay for masses or prayers for the decedent, as directions for a “personal purpose” rather than for a public or charitable purpose); but see In re Baeuchle’s Will, 82 N.Y.S.2d 371, 375 (Surr. Ct. 1948) (concluding that a direction in the decedent’s will to purchase a cemetery plot at Woodlawn Cemetery in Brooklyn, build a mausoleum on the plot, and pay the residue to Woodlawn Cemetery for perpetual care created an “executorial dut[y]” in part because Woodlawn Cemetery could enforce the terms). As discussed below, if the testator’s direction nevertheless violates public policy because it is wasteful, the direction is void, and a beneficiary following the direction will be liable for damages to anyone who would have received a bigger bequest, or otherwise was harmed. Restatement (Third) of Trusts § 124 cmt. g, illus. 5 (Am. Law Inst. 2013).
In regard to a testator’s direction to be buried with a prized possession, this same approach likely should apply. The direction benefits no living person, so presumably no living person would have the right to enforce the direction in court. Accordingly, no living person would have a legal obligation to perform it.
Providing the Beneficiary with an Economic Incentive to Grant the Last Request. If the beneficiary possessing the prized item has only a power (and not an obligation) to grant the decedent’s last request, providing an economic incentive may be helpful. This was done in the “famous Ferrari” case. Although there was no reported judicial opinion, news reports stated that Sandra West’s will provided that a beneficiary (her brother-in-law) would receive $2 million (of her total $5 million estate, $24.9 million in 2023 dollars) if she was buried in the Ferrari; the beneficiary would receive only $10,000 if not. Jim Motavalli, You Can Take It with You, If the Grave Is Deep Enough, N.Y. Times, Feb. 24, 2022; Jim Dossey, Can I Be Buried in My Car? Yes, You Can!, Dossey & Jones (Dec. 11, 2013), https://tinyurl.com/2aadm37j. In response to the question, the court concluded that there was no law prohibiting burial in a Ferrari. Thereafter, the beneficiary arranged for her burial in the Ferrari and presumably received the incentive bequest.
Creating this type of financial incentive for a beneficiary likely guarantees a court battle because the amount of the bequest for different individuals changes based on whether the court declares the direction void as contrary to public policy.
Although not discussed in the only reported case regarding the burial of a testator’s prized possessions, see Meksras Estate, 63 Pa. D. & C.2d 371 (C.P. Orphans’ Ct. 1974), commentators point out that testamentary directions may be void because they violate public policy for being wasteful. See, e.g., Abigail J. Sykes, Waste Not, Want Not: Can the Public Policy Doctrine Prohibit the Destruction of Property by Testamentary Direction?, 25 Vt. L. Rev. 911 (2001); Kaity Y. Emerson & Kevin Bennardo, Unleashing Pets from Dead-Hand Control, 22 Nev. L.J. 349, 366–69 (2021).
With the paucity of direct authority on burying prized possessions, the legal authorities on directions to destroy property at death may provide insight on how to draft directions. Property rights often are described as including the ability to exclude others from using or enjoying an item. See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730 (1998). Consistent with that view, during lifetime, a property owner is free to destroy his property, if the act of destruction does not violate an environmental or other law. Lior Jacob Strahilevitz, The Right to Destroy, 114 Yale L.J. 781, 789 (2005). For example, many famous artists, including Jasper Johns, Georgia O’Keefe, Claude Monet, Ted DeGrazia, and Michelangelo, have destroyed their work. See Tori Campbell, 9 Famous Artists Who Destroyed Their Own Work, Artland, https://magazine.artland.com.
Directions to destroy at death are more closely scrutinized because the dead do not suffer a financial loss, and, instead, the financial loss is borne by the living. Also, the dead will not suffer the “interpersonal costs that living persons pay for eccentric behavior, that is resentment . . . among family members and others,” John H. Langbein, Burn the Rembrandt? Trust Laws’ Limit on the Settlor’s Power to Direct Investments, 90 B.U. L. Rev. 375, 378 (2010), or the vitriol from social media. The restraint of self-interest vanishes at death.
The Restatement of Trusts unequivocally condemns a direction to “throw [$1,000] into the sea upon my death.” It provides that a person who follows such a direction will be liable to any beneficiary incurring a financial loss. Restatement (Third) of Trusts § 124 cmt. g; see id., illus. #5. At first glance, this absolute rule on destroying cash may seem appropriate, and it is consistent with an old case, In re Scott’s Will, 93 N.W. 109 (Minn. 1903), but could other factors be relevant? Some mourners have slipped cash into a decedent’s coffin shortly before it was sealed in recognition of the decedent’s generosity during life. David Dishneau, Public Funeral Planned for Flamboyant Drug Kingpin (Nov. 19, 1986), https://apnews.com/article/99c89c. And what if certain coins or currency had sentimental value for the decedent? And does the Restatement’s use of the $1,000 amount imply that a person could follow a direction to destroy a smaller amount without liability?
Consistent with older precedents, the Restatement also states that directions are unenforceable if the “purpose is capricious.” Id.; Langbein, supra, at 376 n.8 (listing cases). A direction does not have a capricious purpose if “it satisfies a natural desire which normal people have,” even if “no living person benefits from its performance.” Restatement of Trusts (Third) § 124 cmt. g. These standards create considerable room for argument and discretion—What are natural desires? Can natural desires become unnatural when taken to extremes? Who are these “normal people”? Must “normal people” have a certain degree of mental acumen? Are rich people normal? Do we apply the “normal people” test taking into account the particular testator’s wealth, age, geographic location, and religious beliefs?
Turning to case law, four cases involving a testator’s direction to destroy a home dominate the discourse in this area. The cases are split, with two enforcing the testator’s direction to destroy and two refusing to enforce. Together, they suggest the importance of explaining the testator’s motivation.
In the two cases declaring a decedent’s direction to raze a residence void as a violation of public policy, apparently there was nothing in the testator’s will or in the testimony or circumstances presented at trial to explain the testator’s motive. Eyerman v. Mercantile Trust, 524 S.W.2d 210 (Mo. App. 1975) (involving one judge writing the opinion, one judge concurring, and one judge writing a blistering dissent); Matter of Pace, 400 N.Y.S.2d 488 (N.Y. Surr. Ct., Cayuga Cty. 1977). In these cases, the courts noted the harm to the living, including the harm to the local county from lost property tax revenues, harm to the immediate neighbors for diminished property values (as a result of the creation of an adjacent vacant lot), and harm to the residuary beneficiary for the missed inheritance and the cost of the demolition (minus the resale value of the land). In Eyerman, the net monetary loss was approximately $40,000, equivalent to $224,000 in 2023 dollars.
In the two cases enforcing a testator’s direction to destroy her residence, the executor presented circumstances and testimony to explain the testator’s motive. In National City Bank v. Case Western Reserve, 369 N.E.2d 814 (C.P. Ohio 1976), the testator’s last will simply directed that after the removal of the contents, the executor should “raze” her (magnificent) residence to the ground. The remainder beneficiary losing out on a valuable inheritance was a charity, Case Western Reserve University. At trial, all the parties agreed to allow her attorney to testify regarding the spectacular features of the residence, the fact that the “surrounding neighborhood had changed over the years from exclusively upscale residences to one in which the older homes were being converted to [commercial] uses . . . and that she had a great deal of affection for [her home],” that she felt that commercial use would be a “debasement,” and that “therefore, she wanted it destroyed.” Id. at 816–17. The court held that her destruction direction was not against public policy. In the written opinion, the court never questioned why the testator would consider a commercial use a “debasement” or why destruction would be preferable to debasement.
In the other case approving a destruction of real property, the testator’s last will was “direct, sparse, and uncluttered, a reflection of the woman herself.” The will directed the executor to “demolish my home,” pay all related costs, and then offer to sell the vacant land to the City of Buffalo for $100. Matter of Beck, 177 Misc. 2d 203 (Surr. Ct. N.Y. 1998). Despite the failure to state a motive in the will, the court discussed the history of the residence and the testator’s devotion to her home and the nearby church (which was her residuary beneficiary). The City had sought to take the home in condemnation 25 years earlier, and the testator (and her sister) resisted. Id. at 205. Eventually, the building was moved to a different lot, and the related agreements documented the testator’s intentions to have the building demolished after her death and to give the city a $100 purchase option on the lot. Id. at 205. There was no indication that the testator’s statement of intent was legally binding, and the court concluded that the treasured home “was hers to dispose of as she intended.” Id. at 206-7 (emphasis added). Although acknowledging the “unorthodox and novel nature of the . . . testamentary direction,” the court issued “an order granting the right to demolish.”
A few authorities address whether testamentary directions to destroy personal property violate public policy as wasteful and therefore are void. On the one hand, a court declared that a direction to destroy the residue of money or cash remaining after the payment of expenses, debts, and specific and general bequests was void. In re Scott’s Will, 93 N.W. 109 (Minn. 1903). Similarly, in dictum, a court stated that a testamentary direction to destroy $50,000 in negotiable instruments would be void. Matter of Pace, 400 N.Y.S.2d at 493. Also, courts have concluded that a testamentary direction to euthanize a companion animal is unenforceable as a matter of public policy even though, during lifetime, a pet owner generally would have the legal right to humanely euthanize the animal. See, e.g., In re Caper’s Estate, 34 Pa. D. & C.2d 121 (1964) (including a famous tribute to the character of dogs from a closing argument in an older case); see also Emerson & Bennardo, 22 Nev. L.J. at 366–69 (citing three unreported cases).
On the other hand, in Ahmanson Foundation v. United States, 674 F.2d 761 (9th Cir. 1982), the Ninth Circuit, in dictum, indicated that a testamentary direction to destroy personal letters and other correspondence would be enforceable. Id. at 768 (stating that only the value of the resulting ashes would be subject to federal estate tax); see also Sykes, supra, 25 Vt. L. Rev. at 926–27 (discussing situations in which executors failed to follow directions to destroy correspondence).
The “destruction of the residence” cases suggest the importance of documenting the decedent’s motives for wanting to be buried with the prized possession, although some courts have allowed testimony of survivors. In the “famous Ferrari” case, Sandra Ilene West’s housekeeper “told the judge . . . [Sandra] was fascinated with Egyptian history . . . [and that is where] she got the idea . . . .” Fanning, supra.
Also, in the last will (or other document), it may be helpful to include (i) language placing the request to bury in financial context—“I expect to leave over $X to my beneficiaries (if they comply with my last request), and for my last request, I merely am directing that I be buried with an item worth approximately $Y”; (ii) a description of the sentimental value of the item—“That wristwatch means more to me than any other person because I bought it at a yard sale where I met my future spouse (and, besides, not many people wear wristwatches anymore)”; and (iii) an explanation that the testator saved money in other areas—“I thought about taking a monthlong vacation in Europe, but I saved the money and used it to buy a copy of Amazing Fantasy #15 (the first comic book appearance of Spider-Man), and I’m directing that I be buried with it.”
In addition, to counter the argument that the last request is capricious, in the sense that it was a hasty decision subject to change, the testator might execute a series of wills and codicils (or other documents) over a period of years that all include (or incorporate) the last request. The testator would want to retain all of these documents in safe keeping.
This article began by asking if your direction to be buried with prized possessions, such as a teddy bear, a comic book, an MJ jersey, or a wedding band, would be effective. Practical difficulties abound, but the person who possesses these items might be more likely to have an opportunity to carry out your wishes if you have authorized (and perhaps arranged for) temporary storage in a mausoleum or other appropriate cold storage facility while any issues are addressed. In addition, that beneficiary may need a meaningful financial incentive to grant a last request that may be unpopular with other family members and may be ridiculed on social media.
Clearing these practical difficulties, the effectiveness may turn on whether a court would find the direction void under the public policy doctrine because of the economic waste. Historically, the public policy doctrine has been called the “unruly horse of the law” for its unpredictability. See Dillan McQueen, Platforms and Police Departments, 50 U. Mem. L. Rev. 199, 223 (2019) (citing Richardson v. Mellish (1824), 130 Eng. Rep. 294, 303 (HL)). Nevertheless, there are steps that an estate planner might recommend for the client’s last will (or incorporated document), such as thoroughly setting forth the client’s motives, describing the item’s special value to the testator, and emphasizing that the majority of the testator’s wealth will be left for the beneficiary in comparison to the small value of what the testator desires to “take with him.” Generally, many people are buried with their wedding bands and everyone is buried wearing something, but whether a particular last request is void due to economic waste should depend, at least in part, on the resale value of the item and the size of the remaining estate.
