Some legal impediments in respecting the deceased's will

• Author: Roxana Matefi
• Position: Transilvania University of Brasov
• Pages: 141-146

Bulletin of the Transilvania University o f Braşov

Series VII: Social Sciences • Law • Vol. 11 (60) No. 2 - 2018

SOME LEGAL IMPEDIMENTS IN RESPECTING

THE DECEASED’S WILL

Roxana MATEFI1

Abstract: The Romanian Civil code expressly enshrined in article 80 the

respect for the deceased's will. Thus, any person can determine the way of

their own funeral. However, the will of the deceased person is not imposed

on the heirs in absolute terms. The current legal framework on cemeteries,

human crematoriums and funeral services imposes some limitations on the

organization of funerals. Also, canon law can influence the fulfilment of the

deceased's will. As such, this article will highlight some of the legal

impediments faced by the family of the deceased that may arise when

planning the funeral according to the wishes of the dearly departed.

Key words: personality rights, funeral arrangements funeral services, burial,

cremation, secular law, canon law.

1. Preliminary Considerations

The right to determine the type of one’s own funeral was enshrined in the Romanian

legal framework through article 80 paragraph (1) of the Civil code (Law no. 287 from

17th of July 2019) having the marginal name: “the respect for the deceased's will”. The

provision was most probably inspired by the Civil code of Quebec which in article 42

expressly states that a person may determine the nature of his funeral. This is a

personality right and is part of the rights that concern the respect for the privacy and

dignity of the human person (Bîcu, 2016, p. 40).

Article 2 paragraph (2) from the Law no. 102/2014 on cemeteries, human

crematoriums and funeral services also incorporates this provision: “in determining the

place of burial and organising the funeral services, the entitled persons and the

providers of funeral services are obliged to collaborate with each other and to take into

account the will expressed by the deceased during his lifetime”. By entitled persons we

understand those enumerated by the Law no. 102/ 2014 in article 17 paragraph (1)

regarding the persons obliged to dispose as to t he funeral: the person who was under

contract that will take care of the funeral, for example through a donation contract with

a duty (Pavel, 2016, p. 184); the person designated by the deceased's will; in the

absence of will, the spouse of the deceased person, who lived in the same dwelling with

the deceased in the last part of his life; another close relative of the deceased, up to the

1 Transilvania University of Braşov, roxana.matefi@unitbv.ro.