Saturday, February 23, 2013

Unbelievable Law Case

I am a lawyer.  I normally do not confess to this fault but, well, no one's perfect.  As such, I find myself reading many legal cases and thinking about legal matters. 

This past week I read a decision handed down by the Iowa Supreme Court that made me shake my head.  The facts are simple.

Mary Florence (Flo) Whalen and her husband were married in 1952 in Iowa. A year later they moved to Billings, Montana.  They raised 10 children in that community.  In 1996 she and her husband separated.  He returned to Iowa.  She stayed in Montana.

Eventually Flo moved to New Mexico to be close to one of her children.  Six months before she died at age 86, she came to Iowa to visit her husband, Michael, who was in his early 90s.

While in Iowa she wrote and mailed a letter to her children and stated she wanted to be buried in Billings.  She stated she had purchased a cemetery lot and provided instructions where it was located.  She stated she wanted to be buried in a simple wood casket made by Trappist monks.

In Flo's Last Will and Testament she provided express instructions on how she wished to be buried and that she wanted to be buried in Billings, Montana.

However, when she died her husband wanted to bury Flo in Iowa.  The children were upset and sued to have their mother's remains brought back to Billings, Montana.

The judge in the county court in Iowa agreed with the family that, yes, Flo's remains should return to Billings as that was certainly her wishes.

However, the Iowa Supreme Court reviewed the case and decided the husband who had been informally separated from his wife for over 15 years had the legal right to determine where his estranged wife's remains would be buried.

The high court ruled that since Flo had not executed a particular form that complied with Iowa statutory law - similar to a durable power of attorney type form - then she had not properly set out her wishes.

Thus, her husband had the right to determine where she would be buried and he wanted her buried in Iowa.

Two justices dissented and argued that Flo's clear wishes should have been carried out even though she had not completed a particular form.  These two justices argued that by making her wishes known in a Will - which is a very formal document - that should have been more than enough.

With any legal case there are two sides.  Flo's husband may have a very valid reason for wanting his estranged wife buried in Iowa.  At this time I am not aware of what those reasons might have been and the court case does not give us any clues.

Regardless it is all very sad and makes you wonder sometimes why the law, which can be so good, sometimes seems to come up with strange results.

I hope Flo's husband has a good, unselfish reason for doing what he is doing.  I only hope that perhaps Flo had a sincere last moment change of heart and wanted to be buried along side her husband in Iowa.  

We may never know.  But her husband knows and hopefully he is doing what Flo wanted.  

1 comment:

Hilary said...

It sure makes you wonder how they could decide in his favour. One of those "stranger than fiction" situations.