The Disposition of Human Remains

There 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.

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.

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; (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) an 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

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.

Trevor Todd

remains passes to persons of equal rank, the order of priority (a) is determined in accordance with an agreement between or among them, or (b) in the absence of an agreement referred to in paragraph (a), begins with the eldest of the persons and descends in order of age. 5(4) A person claiming that he or she should be given the sole right to control the disposition of the human remains or cremated remains may apply to the Supreme Court for an order regarding that right.

The right of priority, however, is subject to the Court having to consider the criteria set out in section 5(5) of the Act and this is where matters can become very contentious. 5(5) When hearing an application under subsection (4), the Supreme Court must have regard to the rights of all persons having an interest and, without limitation, give consideration to (a) the feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased; (b) the rules, practice, and beliefs respecting disposition of human remains and cremated remains followed or held by people of the religious faith of the deceased; (c) any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains; and (d) whether the dispute that is the subject of the application involves family hostility or a capricious change of mind respecting the disposition of the human remains or cremated remains. (6) Despite subsections (1) to (3), if the Supreme Court makes an order in favour of a person who has applied to it under subsection (4), that person is deemed to be at the top of the order of priority set out in subsection (1).

CASE LAW

In Kartsonas v. Kartsonas 2010 BCCA 336, the Appeal Court dismissed an appeal from an order granting the testator’s children the sole control of the disposition of their father’s remains. The children, unlike the opposing testator’s niece, wanted a religious burial in accordance with Greek Orthodox religion.

The niece opposed the application on the basis that the testator had been estranged from his children and had trusted the burial arrangements to her. She argued that he was an atheist and therefore would not have wanted a religious funeral.

The Appeal Court held that the decision was discretionary as the judge considered the evidence before him, and concluded that the rights of all persons having an interest fell, on balance, in favour of the wishes of the deceased’s family members who wanted a religious funeral.

The first priority is given to the personal representative named in the Will of the deceased.

The next-following priorities are given to the spouse of the deceased and the adult children of the deceased.

Section 5(4) of the Act authorizes an application to be made by a person claiming that he or she should be given the sole right to control the disposition of the remains of a deceased person.

Section 5(6) provides that if such an applicant is successful, then he or she is deemed to be at the top of the order of priority.

While Clause C of section 5(5) provides that reasonable directions given by the deceased person are to be taken into account on an application under section 5(4), it is not determinative and is only one factor to be taken into account by the Court

The Appeal Court held that the trial judge properly exercised his discretion, having regard to the provisions of section 5(5) and he rightly concluded that the rights of all persons having an interest fell on balance in favour of the wishes of the deceased’s family members who wanted a religious funeral.

In Wiebe v. Bronstein 2013 BCSC 1041, the Court held it had no jurisdiction to make an order varying the internment plaque to refer to the plaintiff as the partner of the deceased, as section (4) only dealt with the disposition of human remains and did not deal with the placement of memorials after the human remains were disposed.

Funeral Costs Must be Reasonable

Chernichan v. Chernichan Estate 2001 ABQB 913 held that while funeral expenses are a top priority of the estate debts, the funeral costs themselves must be reasonable in relationship to the financial situation of the

The first priority is given to the personal representative named in the Will of the deceased. The next-following priorities are given to the spouse of the deceased and the adult children of the deceased.

deceased, particularly where there was an insolvent estate, as was the case. The Court found that funeral expenses of $10,800 in that estate were held to be mostly excessive, considering the deceased was insolvent. The Court even disallowed the funeral reception/luncheon.

There is no universal answer as to which expenses are reasonable and which are not. The funeral ritual in our society is intricately bound up with cultural and religious beliefs and practices.

The law permits the expenditure of estate funds for a decent burial in accordance with the traditions of the deceased as long as extravagant and unreasonable expenses are avoided, Mullick v. Mullick (1829), 1 Knapp 245, 12 E.R. 312 (Eng. Ch. Div.). Where an estate is insolvent, those involved in the burial must limit themselves to the minimum expenses that will accord a dignified interment.

What is reasonable in one context may not be reasonable in another.

Where an estate is solvent and funeral arrangements are made by the personal representative, he or she will be able to charge to the estate (as against the beneficiaries) all expenses consistent with the culture, religion, and station in life of the deceased, even if some of the expenses might be viewed objectively as “luxuries.”

Where the estate is solvent, but the funeral arrangements are made by someone other than the personal representative who now seeks reimbursement from the estate, the same rule will generally apply.

A person seeking reimbursement must exercise greater restraint, however, because the personal representative, the beneficiaries, or ultimately a Court may disagree on what is fitting for the deceased. Some expenses that would be allowed to a personal representative as against beneficiaries may not be allowed to a third party as against the personal representative.

Where one party pays funeral expenses, he or she is generally able to recover them from any person who has a higher obligation to pay them, even if that person had no input into or even knowledge of the funeral: Schara Tzedeck v. Royal Trust Co. (1952), [1953] 1 S.C.R. 31 (S.C.C.) at page 37.

Funeral arrangements must usually be made in a very short period of time, sometimes before the personal representative is identified and invariably before probate is issued. The family usually makes the arrangements without regard to who is in a technical sense legally responsible for either making the arrangements or paying the expenses.

Because of the public interest in the prompt and dignified disposal of human remains, the law imposes a duty on those ultimately responsible to reimburse the person who actually incurs the obligation.

Conclusion

Most experienced estate litigators have probably had occasion to argue over the disposition of human remains or cremation. The disputes can become very litigious when different religious burial rituals are either denied or being carried out to the dismay of opposing relatives.

The Cremation, Internment and Funeral Services Act is an attempt to set out the priorities and sensitivities that the Court must consider on any application for control of a contested funeral service. s Trevor Todd restricts his practice to estate litigation. He has practised law in Vancouver for 47 years.

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