The Study of Self-use Preneed Contract
Date Issued
2015
Date
2015
Author(s)
Chang, Mei-Mei
Abstract
The subject of this thesis is ""self-use preneed contract"", one feature of this contract is that the context is about the contractor’s own funeral arrangements (in other words, it is about the disposition of their own remains); therefore, the self-use preneed contract itself represents the final wishes of the decedent. However, our law practice and theory consider human remains as inheritance and associate them with succession, so the human remains are owned in common by the heirs. By this thread, the decedents can barely control their remains. When there are conflicting wishes between the decedent and their heir, our current legal system provides less protection to the final wishes of the decedent than United States and Japan. This thesis considered ""the right of people''s funeral self-determination” should be highly protected, because it involves the people’s personal rights and their freedom of religious belief. Accordingly, if the decedent’s prearrangement of funeral affairs is not against public policy or morals public, nor violates an imperative or prohibitive provision of the act, and it is practicable, it should be legally binding rather than just kind of moral request. Since our current legal system lack of unity regulation of the disposition of human remains and the opinions of our law practice and theory on human remains are inappropriate, for ensure the fulfillment of the self-use preneed contract, this thesis considers the proper legislative policy should be enact a unity regulation of the disposition of human remains, which includes statutory order of the disposition of human remains (refers to American statute), the decedent’s right to designate an agent and the legally binding of the funeral directions made by the decedent. The other feature of self-use preneed contract is that the contractor was already deceased at the performance time of the contract; the following of this thesis was about whether the decease of the contractor terminates the contract itself. Besides, after the contractor deceased, his/her heir will assume all the rights and obligations of the decedent at the time of the commencement of the succession and then become new contractor, under the circumstances, the topics about “can the heirs rescind or terminate the contract” and “can the heirs avoid paying the price of the contract by waiving his/her right to an inheritance” were also interesting. The former question is about the balance of benefits between the decedent and their heir, except the situation that the intention of the contract cannot be achieved, this thesis considered if the cost of the contract was reasonable and the context of the contract was practicable and not against public policy or morals public, nor violates an imperative or prohibitive provision of the act, the heirs should not have the right to overthrow decedent’s prearrangement. The latter question is about the legal nature of the price of the self-use preneed contract, because its dual nature: the debt of the decedent and the funeral expenses, we need to discuss who has the obligation to pay the funeral expenses. This thesis considered funeral expenses should combine with the right to control disposition of remains, since the decedent should has the right to control his/her own remains, the funeral expenses should be paid by the estate. The person who takes control of the disposition under the law is liable to pay reasonable costs of the funeral expenses in advance, and then seeks to recover the costs from the decedent''s estate. Finally, to ensure the fulfillment of self-use preneed contract, our current legal system creates the role as “contract executor”. However, when there are conflicting wishes between the decedent and their heir, the executor has no effective means other than moral request to ensure the fulfillment. Faces the funeral firm, the current legal system cannot reach the purpose of ""supervision and ensure the enforcement of the contract"". This thesis considered the executor was essential to self-use preneed contract, their qualifications should be limited, and should grant the authority about the contract and the right to control disposition of remains. As the executor gain the right to control disposition of remains, the final wishes of the decedent can be truly fulfilled. This thesis discussed about the above-mentioned topics and made some suggestions, hoping to provide some contribution to the whole study.
Subjects
self-use preneed contract
prearrangement
human remains
funeral expenses
contract executor
Type
thesis
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