As part of the Jewish High Holiday season, like many of my co-religionists I have gone through some introspection and wondered is there a case that defines me as a lawyer. Throughout my career I have had the opportunity to represent some very interesting clients and be involved in some very interesting cases. When I thought about it there were two very similar cases that came to mind.
Both cases involved Orthodox Jews whose relatives were buried in non-Jewish cemeteries. The clients had no money to pay a lawyer, but were desperate for help. The rabbi involved was a dear friend and mentor of mine. He sought my counsel and beseeched me to move Heaven and Earth to assist these people.
For many Jews being buried in a Jewish cemetery is a red line that they do not want to cross. Even many of those who have assimilated or intermarried have a visceral wish to come home, so to speak. This is reflected by the Halachic (religious Jewish law) prohibition of disinterment. Ordinarily, disinterment is forbidden except for exceptional circumstances like disinterment from a non-Jewish cemetery. Why? Because to many Jews, burial in a non-Jewish cemetery has profound negative spiritual consequences. Accordingly, it is of paramount importance for many of us who somehow found ourselves in a non-Jewish cemetery to be disinterred and reburied in a Jewish cemetery.
וַיֵּאָסֶף אֶל עַמָּיוַ is the Hebrew phrase used in the Bible describing death (and internment). Loosely translated it means that the deceased was gathered into his people. According to my clients’ beliefs, this description of death defines us. Wherever life’s journey took us we are going home to be amongst our people. Accordingly, it is the religious legal obligation of every Jewish community to provide burial grounds for its inhabitants. Throughout our history we Jews lived in many a hostile country, often unwelcome, scorned and persecuted. For those of us in the faith community, the tombstones of our cemeteries stand together in silent witness to our common existence awaiting the resurrection. The issue of the necessity of disinterment and reburial of Jews buried in gentile cemeteries was addressed by Rabbi Moshe Feinstein who is perhaps the greatest halachic authority (decisor of Jewish law) of the 20th century. Without going into the details of his review, the substance of his response is that we must move heaven and earth to gather the departed back to their community. It is for this reason that the Israelis will trade hundreds of prisoners for the return of the bodies of their fallen soldiers.
From a legal perspective, it is important to remember that in Ontario the testators’ expressed intentions play no role in burial decisions. It is the executor/administrator who is entitled to possession of the body. For example, in Williams v. Williams, a Protestant husband converted to Catholicism in order to be buried next to the plot set aside for his wife. Upon his demise, his widow and son fought about the place of burial. The court sided with the deceased’s son because he was the executor. They did so despite the fact that the executor’s burial plans were clearly contrary to the stated intentions of the deceased. That is why the ultimate successful resolution of the two cases I was involved in and am writing about had less to do with what I learned in law school and more to do with what I learned at my father’s knee. Suffice it to say, in both cases each deceased was disinterred and reburied in a Jewish cemetery.
Having to involve the courts in these circumstances is profoundly sad. These cases are not about money, but disputes on how to best honour the departed.
Despite the temptation to jump to conclusions, it would be a mistake to treat this blog as substantive legal advice. For those considering seeking to compel a disinterment, there is no substitute for hiring a competent solicitor whose own research, analysis and judgment should be canvassed prior to going to court.