Family Disagrees About Funeral Wishes in British Columbia: Who Decides?

Few conflicts are as painful as one over burial versus cremation, or over what a person really wanted. The decision is urgent, emotions are high, and relatives may remember different conversations.

In British Columbia, the law sets out who has the right to decide, so it is not simply the loudest voice or the closest relative by feeling. This article explains how that authority is determined and what happens if the family cannot settle it.

This article covers the law of British Columbia.

Who has the right to decide

Under the Cremation, Interment and Funeral Services Act, the right to control disposition of human remains or cremated remains goes in order of priority. The order is:

• the personal representative named in the will
• the spouse
• an adult child
• an adult grandchild
• a guardian, if the deceased was a minor
• a parent
• an adult sibling
• an adult nephew or niece
• an adult next of kin under WESA s. 23(5)
• the minister under the Employment and Assistance Act or the Public Guardian and Trustee
• an adult with a personal or kinship relationship

The Province says only the person named in the will, or someone authorized under the Act, can let a funeral director move the body.

When the person is unavailable or several people share rank

If the person with the right is unavailable or unwilling, the right to give instructions passes to the next person in priority.

Where several people have equal rank, such as several adult children, priority is set by their agreement. With no agreement, it begins with the eldest and descends in order of age. So among three adult children who disagree, the eldest has priority unless they agree otherwise.

What if the deceased left written wishes

A written preference about disposition in a will or preneed contract binds the person with control, provided it is consistent with the Human Tissue Gift Act and is not unreasonable, impracticable or a cause of hardship. That is a real limit: a wish that cannot reasonably be carried out may not have to be followed.

Verbal wishes are different. They may carry weight emotionally, and a court can consider the deceased's reasonable directions, but the written-wish rule above applies to wills and preneed contracts. If you think there is a will, you may need to find it. Anyone who provides the documentation and payment can apply for a search of wills notice once the testator has died.

Taking a dispute to court

A person claiming sole control may apply to the Supreme Court. The court considers the feelings of those connected to the deceased, with particular regard to the spouse, religious practices, the deceased's reasonable directions, and family hostility or a capricious change of mind. The person it names is deemed to be at the top of the order of priority.

Court is usually a last resort. Because arrangements often cannot wait, many families try a conversation with a neutral person, such as a lawyer or a mediator, first. A lawyer can tell you whether the order of priority already settles the question.

Costs, funeral homes and what to do next

Funeral operators and providers are protected from liability for acting on an authorization, unless they knew or ought to have known it was false or that the signer lacked authority. Who is liable to the funeral home for the bill is governed by the contract, not by the priority order, so read what you sign before signing it.

In an insolvent estate, the first priority for payment is reasonable funeral and other expenses incurred by the personal representative, ahead of the representative's compensation, legal expenses, wages and other claims. That order applies only to insolvent estates, and claims in the same class are paid rateably when funds are insufficient. Whether expenses paid by someone else, such as a family member, are covered depends on the situation, so it is worth confirming with a lawyer. The court can also award reasonable funeral and disposal expenses in a proceeding by the personal representative. If the estate and the responsible person cannot pay, the Burial or Cremation Supplement may help, but ministry preapproval is required before services are provided.

• Check whether a will or preneed contract states a preference.
• Work out who ranks highest under the order of priority.
• If people rank equally, try to agree, or look at order of age.
• Pause large funeral purchases until authority is clear.
• Get legal advice quickly if someone threatens to act alone or wants to apply to court.

Frequently asked questions