Disputes over funeral and burial arrangements can arise after the death of a loved one. These disputes may involve disagreements over the funeral arrangements, including date, location, and content of the service, disposal of the body, including whether the body should be buried or cremated, and disputes over the burial location or who will possess the ashes in the case of cremation.
Under Ontario law, an estate trustee appointed in the deceased’s will has control over the body and is authorized to make decisions regarding the funeral arrangements and the disposition of last remains. Therefore, when a dispute arises, it is ultimately the estate trustee who has the final say over funeral and burial arrangements. If the deceased died without a will, this authority goes to the individual appointed as the estate administrator by the court.
While estate trustees may consult family and friends in making decisions about funeral arrangements and disposing of last remains, they are not obligated to do so. Additionally, the deceased’s instructions regarding funeral and burial arrangements are not legally enforceable against the estate trustee. The estate trustee’s only obligation regarding funeral and burial decisions is to ensure the body is dealt with appropriately and disposed of in a decent and dignified fashion. Practically, however, estate trustees often consult family members if they are involved in making funeral and burial arrangements and will often follow the deceased’s instructions.
If family members cannot agree on funeral and burial arrangements, they may seek the court’s assistance in resolving the dispute. An example of this occurred in the case of Saleh v. Reichert, which involved a dispute between the deceased’s husband, who wanted his wife’s body to be cremated, and the deceased’s father, who wanted his daughter’s body to be buried according to the principles of the Muslim faith.
In this case, the deceased died without a will and the husband was appointed as her estate administrator. As the estate administrator, the court confirmed the husband had the sole right to determine how to dispose of the remains. Additionally, the court stated that either cremation or burial would satisfy the estate administrator’s obligation to dispose of the body in a decent and dignified fashion and that religious law had no bearing on this matter.
Estate Planning & Funeral and Burial Instructions
Even though a deceased’s funeral and burial instructions are not legally enforceable, estate trustees and family members will often consider and follow these instructions when known. Taking the time to consider and document funeral and burial instructions as part of a detailed estates plan can help avoid disputes by eliminating uncertainty over the deceased’s wishes and can assist estate trustees in resolving any disputes that do arise. This can greatly reduce the risk of costly and painful litigation between family members. Therefore, preplanning funeral and burial arrangements should not be overlooked, especially by those who anticipate that conflict may arise.
This blog post was written by Caitlin Gallant, a member of the Estate Litigation  team. She can be reached at 613-369-0372 or at caitlin.gallant@mannlawyers.com.
