Opinion:In the Matter of the Estate of Downing, 2021 OK 17
Subject matter:Control of a deceased’s remains
Date Decided:April 6, 2021
Trial Court:Oklahoma County (Welch, J.)
Route to this Court:Interlocutory appeal of trial court’s granting of injunctive relief; Retained by OKSCT on the Court’s own motion.
Facts:The decedent’s surviving common law wife was appointed administrator of decedent’s estate, but, pursuant to the motion of three of decedent’s six children, decedent’s wife was enjoined by the probate court from cremating decedent’s body. The probate court ruled that testimony regarding decedent’s purchase of a burial plot and gravestone over fifty years ago was adequate evidence of a written document concerning decedent’s direction for the the handling of his remains under Title 21 O.S. §1158(1). The decedent’s common law wife (and administrator of his estate) appealed. 
Standard of Review:Trial court’s granting injunctive relief is reviewed for abuse of discretion or a decision against the clear weight of the evidence. However, examination of the trial court’s underlying legal conclusions is essential, which is reviewed under a de novo and non-deferential standard. 
Analysis:The only issue addressed on appeal is whether or not the trial court abused its discretion by awarding injunctive relief. This issue turns on the trial court’s statutory interpretation of 21 O.S. 2011(A) §§ 1151 and 1158(1). 
Section 1158(1) “fills in the gaps” of Section 1151(A). The former calls for evidence of either (1) a “pre-need funeral services contract” or, (2) “a written document.” 
There was no evidence in the record that the decedent executed a “pre-need funeral services contract” or a “written document” assigning responsibility for or directing the manner/method of the disposition of his remains. Mere ownership of a burial plot does not meet either requirement. 
Outcome:Trial court reversed. Matter remanded to proceed with probate proceedings in accordance with the Court’s ruling. 
Vote:5-3. Opinion by Gurich, J. Kauger, Edmondson, Combs (by separating writing), and Rowe (by separate writing), JJ. concur; Darby, C.J. (by separate writing), Kane, V.C.J. (by separate writing) and Winchester, JJ., dissent. 
Other: Dissent by Darby, C.J., asserts that the majority’s analysis of the relationship between 21 O.S. 2011(A) §§ 1151 and 1158(1) is inconsistent with the Court’s analysis of these same statutes in In re Estate of Foresee, 2020 OK 88.