The Right to Control A Testator’s Funeral

Old Bridge Funeral Home, LLC v. Pruckowski, et al., No. A-0519-15T2, 2017 N.J. Super. Unpub. LEXIS 397 (N.J. Super. Ct. App. Div. Feb. 21, 2017).

This matter pertains to the right to control a testator’s funeral under N.J.S.A. § 45:27-22(a).

Marie Pruckowski (“decedent”) passed away in October 2014.  She was survived by her three children:  Paul Pruckowski, Kenneth Pruckowski, and Theresa Mary Donnelly, and her brother, Anthony Castiglione.  In March 2011, decedent executed a will (“the will”) naming her brother as executor.  She directed that all her “just debts and funeral expenses” be fully paid and satisfied.  However, she did not name a funeral agent to address her funeral arrangements.  Moreover, the will made no provision for decedent’s three children.

Two weeks prior to Marie’s death, her brother obtained a $13,000 price quote for her funeral from a funeral home in Union, where his nephew was the funeral director.  However, the children wanted a funeral close to Old Bridge, where Marie’s family and friends lived.  The children obtained price quotes and “booked” the funeral with Old Bridge Funeral Home for $30,789.  Paul signed a “Payment Policy” that required full payment before the funeral services.  When the executor would not pay the remainder and the Funeral Home insisted on payment to proceed with the funeral, the children each signed a “Contract/Promissory Note,” agreeing to pay the balance remaining of $26,374.  The contract provided that payment was a personal obligation “in addition to the liability imposed by law upon the estate and others.”

The Funeral Home then filed suit for breach of contract and other causes of action when the outstanding balance was not paid, naming as defendants, the children, the brother and the estate.  The brother and estate filed an answer, counterclaim and cross-claim denying financial responsibility for the funeral because the children had made the funeral arrangements.  The son, Paul filed an answer requesting an accounting as, he contended, there should have been available estate funds for the funeral.  The other children defaulted when they did not answer the complaint.

All of the parties filed motions for summary judgment – the son seeking judgment against the estate to require it to pay for the funeral and the Funeral Home requesting judgment against the defendants for the unpaid balance of the funeral or the value of its services, while the brother and estate asked for summary judgment against the children.

The trial court heard oral argument and reserved its decision on the motions.  While the decision was pending, Paul filed a motion to assert a cross-claim for indemnification against the estate and executor to pay the funeral expenses.

Thereafter, the trial judge denied Paul’s motion for summary judgment, granted summary judgment to the Funeral Home, and granted summary judgment to the estate and executor.  The court found the children were financially responsible for the cost of the funeral arrangements, as they had “knowingly chose[n] to incur the $30,000 expense of a funeral on their own.”  The trial judge reasoned that the executor, as the decedent’s brother, had legal authority to direct the funeral under N.J.S.A. § 45:27-22(a).

Pursuant to the statute, if a testator appoints a person “to control the funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed.”  N.J.S.A. § 45:27-22(a).  The court found the children’s rights under the statute invalid as they had been left out of the will.

Additionally, the trial court denied Paul’s motion to assert a cross-claim as both the will and the “Payment Policy” were clear and unambiguous.  Thus, any cross-claim he could assert against the estate was futile.

Paul appealed the order denying his motion to amend the pleadings.  The Appellate Division reversed the order denying amendment of the pleading, and moreover, reversed the order granting summary judgment to the estate and executor.  Although Paul did not appeal the order granting summary judgment, the court found the order was based on an erroneous conclusion that the siblings could not control the funeral.  Thus, the underlying premise of the order denying the amendment to the pleading was false.

Specifically, the appeals court found there was no prejudice to the estate and executor by permitting an amendment to include a claim for indemnification.  In determining whether to allow the amendment of a pleading, courts must determine “[w]hether the non-moving party will be prejudiced, and whether granting the amendment would nonetheless be futile.”  (citing Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006)).  The Appellate Division found the newly asserted claims were based on the same underlying facts and events set forth in the original pleading.  Further, the court noted that the estate acknowledged its obligation to pay reasonable funeral expenses, and no apparent trial date was scheduled.

Second, the appeals court found the trial court erred in finding the children had no right to control the funeral under N.J.S.A. § 45:27-22(a).  If the testator does not appoint a person to control the funeral, and no other direction has been given by a court, then the statute sets forth a hierarchy of individuals to control the funeral and disposition of remains.  Specifically,

[i]f the decedent has not left a will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order, unless other direction has been given by a court of competent jurisdiction:

(1)        The surviving spouse of the decedent of the surviving domestic partner.

(2)        A majority of the surviving adult children of the decedent.

(3)        The surviving parent or parents of the decedent.

(4)        A majority of the brothers and sisters of the decedent.

(5)        Other next of kin of the decedent according to the degree of consanguinity.

(6)        If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

N.J.S.A. § 45:27-22(a).

In Marino v. Marino, 200 N.J. 315, 324 (2009), the Court found that as originally enacted in 1971, the internment statute

[c]reated a hierarchy as among survivors for purposes of determining which of them would be authorized to control the disposition of remains.  At the same time, however, the statute expressed a preference for carrying out the wishes of the decedent by referring to the right of the decedent to give directions and by authorizing others to act only in the absence of such directions.

Said enumeration was necessary to make clear “who may decide on burial … to avoid, or to end quickly” disputes regarding burial.  Id. at 332.

Here, the Appellate Division found that because Marie’s will did not name a funeral agent, the statutory hierarchy applied.  Pursuant to the statute, the children of the decedent had a higher priority right to control the funeral than the decedent’s brother.  Notably, the appeals court stated, “[t]here is nothing in the statute providing that the statutory hierarchy shall be modified based on whether the children inherit under the will.”

Lastly, the appeals court remanded the sole issue of determining what funeral expenses were reasonable.  Under the will, the decedent directed that her “just debts and funeral expenses” be fully paid and satisfied.  Pursuant to N.J.S.A. § 3B:10-23, it is the executor’s obligation to settle and distribute the estate in accordance with the terms of any will.  The Appellate Division noted that such obligation includes the payment of funeral expenses.  However, when a third person makes funeral arrangements for the decedent at the expense of the estate, “all authorities uniformly hold that the expenses incurred must be reasonable” (citing Haeberle v. Weber, 56 N.J. Super. 428 (Law Div. 1959)).  The appeals court found the record is not sufficient for the determination of what funeral expenses were reasonable for the decedent, and thus remanded the issue to the trial court.