## Facts

- Hilliard Cohen executed a 1992 will requesting burial in his family plot at Mount Hebron Cemetery in New York.
- Hilliard and his wife, Margaret, later moved from New York to Florida; Hilliard’s health declined and incapacity/guardianship proceedings followed.
- During the guardianship proceedings, witnesses including an attorney ad litem and an examining physician testified that Hilliard stated he wanted burial in Florida next to Margaret.
- After Hilliard died, Margaret initially intended cremation; Hilliard’s brother Ivan petitioned to prevent cremation and to enforce the will’s New York burial direction.
- The probate court treated the will’s burial provision as ambiguous in light of later statements and circumstances, considered extrinsic evidence, found Hilliard’s final intent was burial in Florida, and ordered burial there.
- Hilliard’s siblings (Ivan and Cressie) appealed, arguing the will’s burial instruction should control.

## Issues

1. Whether burial instructions in a will are conclusive and binding on a court.
2. Whether a court may rely on competent evidence of later oral statements to find the decedent changed burial preferences and order disposition contrary to an earlier will clause.
3. Whether the probate court’s findings of the decedent’s intent were supported by competent, substantial evidence.

## Decision

- The appellate court affirmed the order directing burial in Florida.
- The court held that a will’s burial provision is evidence of intent but is not conclusive in the same manner as testamentary property dispositions.
- The court permitted consideration of extrinsic evidence, including later oral statements, to determine the decedent’s final wishes.
- Applying a competent, substantial evidence standard, the court deferred to the probate court’s credibility determinations and factual findings.

## Legal Principles

- Human remains are not treated as “property” for purposes of applying ordinary rules governing testamentary bequests; burial directions in a will therefore are not automatically binding.
- A court may consider credible extrinsic evidence, including subsequent oral expressions, to determine and implement the decedent’s final intent regarding disposition of remains.
- Appellate review of probate findings on intent is deferential; factual determinations supported by competent, substantial evidence will not be disturbed.

## Conclusion

The court upheld burial in Florida because burial directions in a will are not conclusive, and competent evidence supported the probate court’s finding that the decedent later expressed a different, final preference.


Cohen v. Guardianship of Cohen, 896 So. 2d 950 (Fla. Dist. Ct. App. 4th Dist. 2005)