Eternity with that “Bastard”?

Posted in Clients,Divorce,Lawyers,Resources for Lawyers on December 8, 2016

Eternity With That “Bastard”?
Who Says the Fun Has to Stop:
Decades-old Family Feud Continues After Death

In a decision issued two weeks ago, a judge was called on to decide whether a sister may disinter a decedent (a person who died), from where she was buried by her son in Queens, NY, to Jerusalem, Israel, over the son’s objections. In re Lipiner vs. Plaza Jewish Community Chapel, — Misc. 3d. —, — NYS3d —, 2016 WL 7028365, 2016 NY Slip. Op. 26396 (Supreme Court, NY County, 11/22/2016)(Arlene P. Bluth, J.).  The son, David, had Decedent buried in her reserved plot next to her ex-husband and an infant son who died many years before, at 14 months of age.

The decedent, her sister and parents were all Holocaust survivors.  The  parents were buried in Israel.  The sister lived close to decedent and helped her for many years, and shared a bank account with her.  Decedent’s son and daughter had moved to other states years before.

Like other Jewish families, decedent’s family had disagreements that lasted decades.  The sister and Decedent’s children were estranged.  David hadn’t attended the sister’s husband’s funeral.  Family members hadn’t been invited to Decedent’s great-grandson’s bar mitzvah.

When the sister’s husband died, the sister and her daughter bought plots for him and themselves in Israel.  The sister testified that Decedent at that time bought a plot there for herself as well, so as to be buried near her parents.  The son questioned, however, whether it wasn’t the sister who wrote the check for it from the joint bank account though he offered nothing to support this contention.

Weeks before Decedent’s death, the sister left an envelope for David on a table in Decedent’s apartment with information about the cemetery plot in Israel.  Though David opened the envelope nine days before Decedent died, he didn’t ask her where she wished to be buried or otherwise try to ascertain what she wanted.

The two home health aides who cared for the Decedent in the last year of her life (who had no stake in the controversy) testified that Decedent told them several times that she wished to be buried in Israel.  One of them testified that the Decedent said her ex-husband “was a ‘bastard’” who treated her poorly.  The children, however, testified that they believed their mother wanted to be buried in Queens and would not have wanted to be separated from the infant son she’d buried.

It is not the wishes of the closest family member, the court held, that controls the disposition of a decedent’s remains.  Rather it is the actual desire of the Decedent herself that controls:

Where a human being wishes to be buried is a deeply personal, and often spiritual, decision. Whatever the motivation for that particular location, a decedent’s survivors must strive, to the extent practicable, to fulfill the decedent’s wishes. Ultimately, the wishes of the deceased must prevail over the survivors’ own preferences.

The judge recognized that though “[t]he dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose,” here “there are good and substantial reasons to move [Decedent’s] remains to Israel.”

The judge faulted David for not ascertaining Decedent’s actual wishes. “David’s decision to ignore the fact that his mother had a plot in Israel is inexcusable. He had a responsibility to at least attempt to ascertain his mother’s final wishes regarding her burial location.”  One of the health aides testified that “she [had] pleaded with David to put past grievances behind him and grant his mother’s wish to be buried in Israel rather than ignore his mother’s desire in order to spite his aunt.”  That he didn’t ascertain Decedent’s wishes and do what she wanted rather than what he wanted, the court held, made him incompetent to control Decedent’s remains.  “Competence” under Public Health Law § 4201 (setting forth who controls the disposition of remains), the court held, means a willingness “to act in conformance with [the deceased’s] wishes and desires.”  Here, David’s failure to ascertain and follow her wishes, the court held, “renders him incompetent as the person tasked with carrying out the wishes of the deceased.”  Decedent’s daughter, who just deferred to David and testified that she didn’t know Decedent’s wishes, was similarly incompetent.

“When someone is unwilling or unable to carry out the wishes of the decedent, then the Court must proceed to the next applicable person listed in Public Health Law § 4201(2)(a) to carry out the decedent’s final burial wishes. Here, that person is [the sister].”  As a result, the court permitted the sister to disinter Decedent from Queens and move her to Israel.

“The evidence shows that [Decedent] wanted to be buried in Israel and that David buried her in Queens without undertaking any inquiry into her wishes and actively ignoring evidence of a recently purchased plot in Israel.  [Decedent] did not want to spend eternity next to her ex-husband, “the bastard.”  The evidence shows that she wanted to be in Israel, near her parents and next to her sister.  This is a good and substantial reason to move [Decedent] from Queens, a place where she did not want to be, to Israel, a place she wanted to rest for eternity.”