WILLS & ESTATES
THE MiX
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here are a surprising number of estate disputes arising over the format of the handling of a deceased’s remains, particularly when the deceased and spouse were of different religions. At common law, a spouse is responsible for the funeral expenses of the deceased spouse. The rule originally only applied to husbands, but it was later applied to both spouses since wives became entitled to their own estates. The common law was changed by the introduction of statutes such as the Cremation, Internment and Funeral Services Act RSBC that governs the disposition of human remains and the control of same. The primary responsibility for insuring the burial of a deceased person now falls on the personal representative of the deceased, who will in turn be entitled to an indemnity for expenses in this regard out of the estate as a first charge. Where the estate is inadequate to bear the burden, a secondary responsibility falls on the person responsible in law for the support of the deceased. Thus, the surviving spouse will be responsible for the burial of a spouse, and the parent for the burial of a child in the absence of a surviving spouse. Volume 30, Number 3, Winter 2021
Photo credit: Matthew Chen
The Disposition of Human Remains Trevor Todd
British Columbia gives the priority for funeral arrangements first to the personal representative (executor or administrator as the case may be) of the deceased and not the spouse, unless the spouse is also the personal representative. Section 5 of the Act sets out the priorities of the right to control the disposition of the human remains or cremation.
The primary responsibility for insuring the burial of a deceased person now falls on the personal representative of the deceased, who will in turn be entitled to an indemnity for expenses in this regard out of the estate as a first charge. Control of Disposition of Human Remains or Cremated Remains 5(1) Subject to this section and section 8(3)(b)(i) [requirement for authorization before funeral services or disposition], the right of a person to control the disposition of the human remains or cremated remains vests in, and devolves on, the following persons in order of priority, (a) the personal representative named in the Will of the deceased; (b) the spouse of the deceased; The Scrivener | www.bcnotaryassociation.ca
(c) an adult child of the deceased; (d) an adult grandchild of the deceased; (e) if the deceased was a minor, a person who was a guardian who had care and control of the deceased at the date of death; (f) a parent of the deceased; (g) an adult sibling of the deceased; (h) an adult nephew or niece of the deceased; (i) an adult next-of-kin of the deceased, determined on the basis provided by section 23(5) of the Wills, Estates and Succession Act; (j) the Minister under the Employment and Assistance Act or, if the Public Guardian and Trustee is administering the estate of the deceased under the Wills, Estates and Succession Act, the Public Guardian and Trustee; (k) a n adult person having a personal or kinship relationship with the deceased, other than those referred to in paragraphs (b) to (d) and (f) to (i); 5(2) If the person at the top of the order of priority set out in subsection (1) is unavailable or unwilling to give instructions, the right to give instructions passes to the person who is next in priority. 5(3) If, under subsection (1), the right to control the disposition of human remains or cremated TABLE OF CONTENTS
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