It is surprisingly common for loved ones of a deceased person to argue or even litigate over the funeral service and disposition of the remains of a deceased person.
One of the leading cases in BC is Kartsonas v Kartsonas Estate 2010 BCCA 336 where the children of the deceased and a niece had joint custody of the deceased’s funeral.
The children wanted a religious service and the niece disagreed arguing the deceased was an atheist at the time of his death.
The children succeeded at both the Supreme Court and the Curt of Appeal whom ordered that the children have responsibility for the funeral and disposition of his remains.
Section 5(1) of the Cremation, Interment and Funeral Services Act, S.B.C. 2004, c. 35, sets out the order of priority of persons to control the disposition of the remains of a deceased person.
The first priority is given to the personal representative named in the will of the deceased.
The next following priorities are given to the spouse of the deceased and the adult children of the deceased.
Section 5(4) of the Act authorizes an application to be made by a person claiming that he or she should be given the sole right to control the disposition of the remains of a deceased person, a s. 5(6) provides that if such an applicant is successful, he or she is deemed to be at the top of the order of priority
Section 5(5) of the Act provides direction to the court in hearing an application under s 5(4). It reads as follows:
(5) When hearing an application under subsection (4), the Supreme Court must have regard to the rights of all persons having an interest and, without limitation, give consideration to
(a) the feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased,
(b) the rules, practice and beliefs respecting disposition of human remains and cremated remains followed or held by people of the religious faith of the deceased,
(c) any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains, and
(d) whether the dispute that is the subject of the application involves family hostility or a capricious change of mind respecting the disposition of the human remains or cremated remains.
11 Clause (c) of s. 5(5) provides that reasonable directions given by the deceased person are to be taken into account on an application under s. 5(4). However, I note that the deceased’s wishes are not determinative and are only one factor to be taken into account by the court.
The wishes of a deceased person as to the nature of his or her burial can be made binding on the person with conduct of the disposition of the deceased’s remains if they are expressed in his or her will or other document that complies with the requirements of s. 6 of the Act. In the present case, Mr. Kartsonas expressed a preference in his will and his representation agreement as to who should have conduct of the disposition of his remains but his preference for a non-religious funeral was not contained in a document complying with s. 6.
