Funeral services and burial arrangements are often the first matters to be dealt with following the death of a loved one.  It is therefore important for grieving friends and family to know who has authority to make these decisions and to understand the nature and extent of that person’s authority.

Who has authority to make decisions about the deceased’s funeral and burial?

The estate trustee has full authority to make decisions about the deceased’s funeral and burial.  While the estate trustee may consult with family and friends, there is no duty to do so and the estate trustee’s decisions are final subject to challenge in the courts.

If the deceased did not execute a will naming an estate trustee, or the estate trustee(s) named in the deceased’s will are unable or unwilling to act, next-of-kin may apply to the courts to be appointed.

How are funeral and burial decisions made?

Many people are often surprised to learn that, in Ontario, wishes expressed by someone prior to their death, whether in writing, in a Will, or made verbally, are not binding on an estate trustee.  Rather an estate trustee has complete discretion to make decisions about the disposition of the body, any religious observances, funeral/memorial services, inscriptions on grave markers, and obituaries, so long as they are acting reasonably.  The law in this area is well-settled and has been consistent over the decades (in fact, Courts continue to cite an English court decision from the 1800s in this area:  Williams v Williams (1882) 20 Ch D 659 (Eng Ch Div)).

In Ontario, generally speaking, an estate trustee has only three obligations to meet in discharging their duty to make burial arrangements:

1. The estate trustee should provide next-of-kin with information regarding the burial and/or disposal of the remains;
2. The deceased’s remains must be disposed of in a dignified way; and,
3. The costs associated with the funeral and burial must be proportionate to the assets of the estate and consistent with how the deceased lived.

Subject to the above parameters, the estate trustee may make whatever arrangements they deem appropriate, even where inconsistent with the religious beliefs of the deceased or the deceased’s family.  Some very narrow exceptions that may apply to an estate trustee’s authority to make decisions about disposition of remains include:

1. Disinterment as provided for under the Funeral, Burial and Cremation Services Act, 2002 and its regulations;
2. Where a warrant is issued for possession of the body by the corner pursuant to the Coroners Act; and,
3. Where the deceased consented to post-mortem donations pursuant to the Trillium Gift of Life Network Act.

The case of Saleh v Reichert, 1993 CanLII 9394 (ON SC) (“Saleh”) serves as an example of how disputes may arise where there is conflict among family of the deceased regarding funeral and burial arrangements. In Saleh, the deceased, Layla, was raised in the Muslim faith and died unexpectedly at 27 years old.  Her husband (and estate trustee), Andreas, made arrangements to have her remains cremated in accordance with wishes she had expressed to him.   Layla’s father, Kassem, started a court proceeding seeking to prevent the cremation and instead have arrangements made in accordance with Islamic practices.

The court dismissed Kassem’s action confirming that an estate trustee has the duty and full authority to dispose of the deceased’s remains.  While the court considered many affidavits of friends and family members who confirmed that the deceased’s wish was to be cremated, the court held that the deceased’s wishes were not dispositive of the issue.  An expressed wish directing for the disposition of his or her body, even as in writing or stated in a Will, cannot be enforced in law.  Religious law had no bearing on the case and Andreas’ plan for cremation met the requirement for a dignified and respectful burial arrangement in this case.

Conclusion

The broad discretion of an estate trustee to make funeral and burial decisions highlights the importance of executing a will before your death and choosing an estate trustee who you trust to honour your wishes.  You may also want to consider discussing your wishes with your family (and estate trustee) while alive so that you can explain the reasons for your decision. Although not binding, these steps may help your family and your estate trustee know what to expect and to avoid disputes about your funeral and burial arrangements after your death.