Who Decides Funeral and Burial Arrangements When Family Disagrees in BC?

After a death, families often must make quick decisions about the funeral, burial or cremation while they are grieving. When relatives disagree, it helps to know that British Columbia has a set order of who has the legal right to decide.

This article explains that order, what happens when someone cannot or will not act, how ties are settled, when the deceased's written wishes bind, and how a court can step in. It is general information, not advice on your situation.

This article covers the law of British Columbia.

The order of priority under the Cremation, Interment and Funeral Services Act

Section 5(1) of the Cremation, Interment and Funeral Services Act gives the right to control the disposition of human remains or cremated remains to people in a set order. The first person on the list who is available and willing 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 under 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

So if the will names an executor, that person comes ahead of the spouse and children when it comes to the remains. The Province also 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 with the right 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 the order of priority. For example, if a named executor declines to deal with the funeral, the next person on the list may step in.

Equal rank: several children, siblings or others

Sometimes several people hold the same rank, such as three adult children. In that case priority is set by their agreement. If they cannot agree, priority begins with the eldest and descends in order of age.

This means the eldest child does not automatically win over the others unless there is no agreement. A calm conversation early on can avoid a legal dispute.

The deceased's written wishes

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

Court applications, funeral homes and costs

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.

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. In practice, a funeral home will want to deal with the person who has the right.

On cost, the Act's priority section does not itself decide who is liable for funeral costs. The contract with the funeral home governs who owes the provider. In an insolvent estate, reasonable funeral and other expenses incurred by the personal representative are the first priority for payment.

What to do next

• Check whether there is a will and whether it names an executor or states written funeral wishes.
• Work out who is highest in the order of priority and whether that person is willing to act.
• If you share rank with others, try to reach a written agreement before signing with a funeral home.
• Read any funeral contract carefully before signing, since it decides who owes the provider.
• Talk to a lawyer promptly if there is a real disagreement, because timing matters and a court application may be needed.

Frequently asked questions