Who gets to decide what happens to the deceased’s remains?

  • The wishes of the deceased will be binding if they are in the will or a funeral services contract.
  • Otherwise the executor or personal representative gets to decide how to dispose of the remains.

In Kartsonas v. Stamoulos the dispute was over how the deceased’s remains should be disposed of.  The Cremation, Interment and Funeral Services Act sets out who controls the disposition.  The first priority is given to the personal representative or executor in the will.

The deceased had written one will in 1978, naming his children as his executors.  He wrote another will in 2007, naming his niece.  The children alleged that the 2007 will was invalid and applied for control of the remains.  The main issue in that hearing was whether the burial should be in BC or Greece.  The judge decided in should be in BC, and gave joint custody of the burial to the children and niece with liberty to apply to court in the event of any further disagreement.

The next disagreement was as to whether the burial should be a religious one or not.  The deceased had been an atheist, but his children, second wife and other family members wished to have a religious ceremony.  Under the Act, the judge is directed to consider the wishes of relatives, and especially the spouse, and also any reasonable directions given by the deceased.  The judge concluded the balance fell in favour of those that wished a religious ceremony, and gave the children control.

The niece appealed to the Court of Appeal.  She brought a new document to court, namely a representation agreement that directed that the niece have complete authority to make his funeral arrangements.  The Court of Appeal dismissed the appeal.  They noted that the wishes of the deceased can be made binding on the person with conduct of the disposition of their remains, but only if those wishes are in a will or pre-need cemetery or funeral services contract.  The deceased’s preference for a non-religious funeral was not contained in any of these documents.

If you have a problem with the estate of a loved one, contact us.

Read the case:  Kartsonas v. Stamoulos

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