Who Has the Right to Decide Funeral Arrangements in BC?

After a death, families often have to make fast decisions about burial or cremation while they are grieving. When relatives disagree, it helps to know that British Columbia law sets out who has the final say.

This article explains the order of priority, what happens with ties and unavailable family members, when written wishes must be followed, and how disputes can reach court. It is general information, not advice on your situation.

This article covers the law of British Columbia.

The legal order of priority

The right to control what happens to a body or cremated remains is set by section 5(1) of the Cremation, Interment and Funeral Services Act. It passes to the first person on this list who holds the right.

• The personal representative named in the will.
• The spouse.
• An adult child, then an adult grandchild.
• A guardian, if the deceased was a minor.
• A parent, then an adult sibling.
• An adult nephew or niece, then an adult next of kin as described in section 23(5) of 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 to the deceased.

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

When someone is unavailable, unwilling or tied

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

Several people can share the same rank, such as three adult children. In that case, priority is set by their agreement. With no agreement, it begins with the eldest and goes down in order of age.

Written wishes in a will or preneed contract

A written preference about disposition in a will or preneed contract binds the person with control under section 6 of the Act. There are limits: it must be consistent with the Human Tissue Gift Act and must not be unreasonable, impracticable or a cause of hardship.

So a clear written wish usually carries real weight, but it may not be followed if carrying it out would be unreasonable or impractical. If you are unsure whether a wish qualifies, a lawyer can review the wording.

When family members disagree

A person claiming sole control may apply to the Supreme Court under section 5(4). 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 deemed to be at the top of the order of priority.

Funeral homes and who pays

Funeral operators and providers are protected from liability for acting on an authorization. That protection does not apply if they knew or ought to have known it was false, or that the signer lacked authority.

Section 5 does not itself say who is liable for funeral costs. The contract with the funeral home governs who owes the provider, so read it carefully before signing.

Other rules deal with how funeral costs are treated in an estate. In an insolvent estate, reasonable funeral and other expenses incurred by the personal representative are the first priority for payment, ahead of the representative's compensation, legal expenses, wages and other claims. That order applies only to insolvent estates, claims in the same class are paid rateably when funds are short, and secured creditors' rights are unaffected. For an intestacy, funeral and administration expenses are deducted when calculating the net value of the estate before spouse and descendant shares.

BC's Burial or Cremation Supplement is available when the deceased's estate and the responsible person cannot pay the full cost, and it is not limited to income assistance recipients. Preapproval from the ministry is required before burial or cremation services are provided, and payment goes directly to the funeral provider. The responsible person who is first looked to for costs may include a spouse, a parent if the deceased was a minor, or a sponsor of a sponsored person.

What to do next

• Check whether the will names a personal representative and whether it records written wishes.
• Work out who ranks highest in the list and whether anyone is unavailable or unwilling.
• If relatives share the same rank, try to reach a written agreement before contacting the funeral home.
• Read any funeral contract before signing and ask who is responsible for payment.
• If a dispute cannot be resolved, speak with a lawyer promptly about a Supreme Court application.

If the death was unexpected, call 9-1-1 or the BC Coroners Service at 1-855-207-0637. A funeral home typically registers the death. Without a funeral home, the death can be registered at a Service BC location or with the Vital Statistics Agency once you have the Medical Certificate of Death from a coroner or physician.

If a will exists, a wills search result must be included with a probate application, even if you believe you have the original last will. How the rules apply to your family depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions