Cohen v. Guardianship of Cohen

Hilliard and Margaret (defendant) Cohen were married for 40 years. Hilliard and Margaret lived in New York with their four children. Hilliard’s family owned a family plot in a Jewish cemetery in New York. Hilliard executed a will in which he expressed his desire to be buried in his family plot. Hilliard and Margaret moved to Florida. Shortly after, Hilliard became ill. Hilliard told Margaret that he wanted to be buried with her in his family plot. Hilliard was Jewish, but Margaret was not and could not be buried in the family plot. Hilliard’s siblings did not get along with Margaret. Hilliard suffered from dementia and Alzheimer’s. Hilliard executed a durable power of attorney, naming his brother, Ivan (plaintiff), his agent. Margaret filed a petition to have Hilliard declared incompetent and a guardian appointed. Ivan filed a petition to be appointed Hilliard’s guardian. Hilliard expressed to the doctor who examined his capacity that he wanted to be buried in Florida with Margaret. Hilliard died, and Margaret was going to have Hilliard cremated. Ivan petitioned the probate court to block the cremation and enforce Hilliard’s will provision expressing his wish to be buried in the family plot. During the hearing, a rabbi testified that Jewish law prohibits cremation and Jewish tradition permits a husband and a wife to be buried together in a Jewish cemetery, provided the wife is Jewish. The rabbi also testified that more recent tradition permits a husband and a non-Jewish wife to be buried together but not in the restricted area of a Jewish cemetery. Hilliard’s daughter testified that Hilliard wanted to be buried with Margaret in Florida. The probate court found the will provision ambiguous and determined by extrinsic evidence that Hilliard wanted to be buried in Florida with Margaret. Ivan appealed.