Who has the Right and Responsibility to Make the Funeral Arrangements?
March 3rd, 2023 by Paul Reimer
After a person has passed away, who has the right and responsibility to arrange for the funeral and the disposition of the deceased person’s body? This question may arise when a person considers making advance funeral instructions. This question may also come up where the family or friends of a deceased person disagree on funeral arrangements or on the method of disposing of the body.
Some provinces in Canada have legislation that prescribe a list of priority as to who is responsible for making funeral arrangements after a person has passed away. In Manitoba, however, there is no order of priority specifically set out in legislation as to who has the right and responsibility to make the decisions for funeral arrangements and the disposition of a deceased person’s body. As a result, in Manitoba the rules of common law determines who has such right and responsibility.
When there is a Will
At common law, whoever has the right to administer the estate of the deceased person is also the person who ultimately has the right and the responsibility to arrange for the final disposition of the deceased person’s body.
What this means is that if there is an executor appointed in the deceased’s last will and testament, the executor bears the responsibility. The Ontario Supreme Court’s decision in Hunter v Hunter (1930), 65 OLR 586 is often cited as authority for the common law principle “that the executor has a right to have the body for the purpose of burial.”
When there is no Will
If the deceased person died without a will (or if the person appointed as executor in the will has predeceased or is otherwise unable to act as executor, and there is no alternate executor available to act), whoever is entitled to be appointed by the Court of King’s Bench as the “administrator” of the estate has the legal right and responsibility to arrange for the interment or cremation of the deceased’s body. The provisions of The Intestate Succession Act of Manitoba sets out the degrees of consanguinity (kinship) and the order of priority for who is entitled to administer the estate of the deceased person. For example, if a deceased person was married, usually the spouse of the deceased person has the first right to become the administrator of the estate and, therefore, has the first right make the funeral arrangements.
Duties of the Executor or Administrator
The executor (or the person entitled to be the administrator) has a duty to dispose of the deceased person’s body in a “dignified and respectful way.” In making arrangements for the disposition of the body, he or she must also follow applicable laws relating to the interment of human remains (such as The Cemeteries Act of Manitoba).
In a recent decision by the Nova Scotia Supreme Court in Krauch v Degen Estate, 2021 NSSC 108, the Court made the following comments regarding this duty:
[…] The executors, administrators or next of kin have the right to custody and possession of the body until it has been properly buried or otherwise disposed of. That right of custody or possession is limited to carrying out the actions for which it was granted, namely ensuring that the body is properly dispositioned.
[…]The common law requires that the executor deal with the body of the deceased in a way that is dignified and respectful.
Advance Funeral Instructions
Notably, while a person may wish to give prior instructions to his or her family or friends as to funeral arrangements, a person cannot make legally binding directions as to how his or her body is to be dispose of after death. (However, note that there may be some legal effect to advance organ donation directions under The Human Tissue Gift Act of Manitoba). While the family or friends of the deceased person may want to honour the wishes expressed by the deceased person regarding his or her funeral arrangements out of respect for the deceased person, the decision-making authority ultimately rests in the discretion of the person appointed in the will as executor (or the person entitled to be the administrator). In the Krauch decision, the Nova Scotia Supreme Court noted that funeral instructions contained in a will are not legally binding:
Wills deal with the disposition of a person’s estate. A person’s body is not part of their estate. Whether a person is cremated or buried, whether a service of remembrance is held, the form and location of the burial or the manner in which ashes are either kept or disposed of, are all matters over which an executor has control. The testator may express a wish, but it is just that.
It is also worth noting that the will of the deceased person is sometimes not read until sometime after the funeral and disposition of the body.
The ultimate right and responsibility to oversee the proper and respectful disposition of the deceased person’s body lies with the executor of the deceased person’s estate, or the person who has entitlement to be the administrator of the deceased person’s estate. While a person may wish to give instructions to their family or friends in advance, it is ultimately up to the discretion of whoever the person appoints as his or her executor (or, if there is no will, the person entitled to be the administrator) to make decisions on the funeral and final disposition of the body.
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