Who Decides Funeral and Burial Arrangements After a Death in BC?

After a death, someone has to decide quickly whether there will be a burial or cremation, and where and how. When the family agrees, this is rarely a legal question. When relatives disagree, or nobody is sure who is in charge, it helps to know that British Columbia has a set order of priority.

This article explains how that order works under the Cremation, Interment and Funeral Services Act, what happens when someone cannot or will not act, and how disputes are resolved. It is general information, not advice on your particular family.

This article covers the law of British Columbia.

The order of priority

Under section 5(1) of the Cremation, Interment and Funeral Services Act, the right to control the disposition of human remains or cremated remains passes down a list. The first person on the list who is able and willing to act holds the right.

• 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, 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

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

When people share the same rank

Sometimes several people hold equal rank, such as three adult children. In that case, priority is set by their agreement. If they do not agree, it begins with the eldest and goes down in order of age.

Because the law gives a default answer, it is usually worth trying to reach a shared decision early. A written agreement among siblings, even a simple one, can avoid confusion later.

Wishes in a will or preneed contract

A written preference about disposition in a will or a preneed contract binds the person who has control. There are limits. The wish must be consistent with the Human Tissue Gift Act, and it cannot be unreasonable, impracticable or a cause of hardship.

So a clear written instruction for cremation will usually be followed. An instruction that cannot realistically be carried out, or that would cause real hardship, may not bind. Whether a particular wish falls into that category depends on the facts, and a lawyer can help you assess it.

When family members disagree

A person claiming sole control can apply to the Supreme Court of British Columbia. The court considers the feelings of people 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. Court applications take time and can be stressful, and funeral timing matters, so many families try discussion or mediation first.

Moving the body, funeral providers and costs

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

Having the right to decide does not by itself make someone liable to pay the funeral home. The Act does not assign liability for funeral costs, so the contract with the funeral home governs who owes the provider. Read it carefully before you sign.

On the estate side, 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. Claims in the same class rank equally and are paid rateably when funds are insufficient, and secured creditors' rights are unaffected. That ordering applies only to insolvent estates.

What to do next

• Look for a will or preneed contract and check for written wishes about burial or cremation.
• Identify who is named as personal representative, then work down the priority list.
• If you are not the person with the right, speak with whoever is before giving instructions to a funeral home.
• Read any funeral contract closely, since it decides who owes the provider.
• If you cannot agree with relatives, get legal advice before a court application.

Frequently asked questions