Can a Body Be Cremated or Buried Without Family Agreement in BC?

When someone dies, relatives sometimes disagree about whether the body should be buried or cremated. Grief, religion and old family tensions can all play a part, and it is not always clear who gets to decide.

In British Columbia the answer comes mainly from the Cremation, Interment and Funeral Services Act. This article explains who has the right to decide, what happens when people of equal rank disagree, and how the court can step in.

This article covers the law of British Columbia.

Who has the final say

Under the Cremation, Interment and Funeral Services Act, the right to control disposition of human remains or cremated remains goes to people in a set 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 the Wills, Estates and Succession Act
• the minister under the Employment and Assistance Act or the Public Guardian and Trustee
• an adult with a personal or kinship relationship

That list is the order set out in the Act, from first to last. Only the person named in the will, or someone authorized under the Act, can let a funeral director move the body.

When the person at the top cannot or will not act

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

If several people share the same rank, such as several adult children, priority is set by their agreement. With no agreement, it begins with the eldest and goes down in order of age.

Wishes written in a will or preneed contract

A written preference about disposition in a will or preneed contract binds the person with control. It must be consistent with the Human Tissue Gift Act and must not be unreasonable, impracticable or a cause of hardship.

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. This is one reason a funeral home may ask for proof of who is authorized.

Going to the Supreme Court

If there is a real dispute, 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 the court names is treated as being at the top of the order of priority. Court applications can be urgent and stressful, so speak to a lawyer early if talks have broken down.

What to do next

• Find out whether there is a will or preneed contract naming a personal representative or stating a preference.
• Work out where each relative sits in the priority order.
• If people share the same rank, try to reach a written agreement.
• Keep communication calm and in writing, and ask the funeral home what authorization it needs.
• If you cannot agree, get legal advice about applying to the Supreme Court.

Who controls the arrangements is a separate question from who pays. The contract with the funeral home usually governs who owes the provider. If cost is a worry, the Burial or Cremation Supplement may help when the estate and the responsible person cannot pay the full cost, and preapproval from the ministry is required before services are provided.

Frequently asked questions