Funeral Costs Must Be Reasonable

Chernichan v. Chernichan Estate 2001 CarswellAlta 1730, 2001 ABQB 913, basically held that while funeral expenses are a top priority of the estate debts, the funeral costs themselves must be reasonable in relationship to the financial situation of the deceased, particularly where there is an insolvent estate as was this one.

In fact, funeral expenses of $10,800 in this estate were held to be mostly excessive considering that the deceased was insolvent, even to the extent that the funeral lunch and expense was disallowed.

The court went on to give an interesting discussion as to the responsibility for funeral expenses and how it has been applied in a few situations.

Responsibility for Funeral Expenses

11 The first question is which entity is responsible for the funeral expenses. Professor G.H.L. Fridman in Restitution, (2^nd ed.) (Carswell, 1992) summarizes the law at pp. 279-80:

The primary responsibility for insuring the burial of a deceased person falls on the personal representative of the deceased, who will in turn be entitled to an indemnity for expenses in this regard out [of] the estate as a first charge. Where the estate is inadequate to bear the burden, a secondary responsibility falls on the person responsible in law for the support of the deceased. Thus, the surviving spouse will be responsible for the burial of a spouse, and the parent for the burial of a child in the absence of a surviving spouse. Where provincial legislation casts a duty on a child to support a parent, the child should also be responsible for the burial of a parent in whatever order the support duty with respect to the deceased person’s parents and spouse is apportioned. It has also been suggested that there is a common law duty to bury on any landowner or householder on whose premises the deceased has died. As well, in Canada, a statutory duty is imposed on municipalities to bury an unclaimed body discovered within their limits. The legislation would appear to establish that the statutory duty on the municipality is one of last resort.

Thus, primary responsibility for the burial of the deceased rests on his estate. Secondary liability will rest on the surviving spouse, parents, and children of the deceased in the order of support obligations under provincial law. Tertiary responsibility lies on the householder. Finally, a residual responsibility rests on the municipality within whose limits the deceased was discovered. (footnotes omitted)

In Alberta the residual responsibility for the burial of destitute or indigent persons falls on the Minister of Family and Social Services under Reg. 13 of the Cemeteries Act General Regulation, Alta. Reg. 249/98, and the residual responsibility for burial of unclaimed bodies essentially falls on the universities under s. 59 of the Universities Act, R.S.A. 1980, c. U-5. The responsibility at law for funeral expenses is not unlimited, and only extends to “reasonable” expenses.

12 In the will the deceased charged his estate with his funeral expenses. The estate is therefore primarily responsible for the funeral expenses at law and by its terms.

13 At common law a spouse is responsible for the funeral expenses of his or her deceased spouse. The rule originally only applied to husbands, but it has applied to both spouses since wives became entitled to their own estates. This rule applies whether the deceased and the surviving spouse were separated or not: Davey v. Cornwallis (1930), [1931] 1 W.W.R. 1 (Man. C.A.) (citing English authority) and Routtu v. Routtu (1954), [1955] 1 D.L.R. 627 (N.B. Co. Ct.). In this latter case the mother died in the house of her son. He had to bury her, but was able to recover from his father who had a higher obligation to bear the expense.

Accordingly, in this action the Respondent personal representative, being the surviving spouse, would be responsible for the funeral expenses at common law next after the estate. The spouse is only liable for any shortfall in the estate, the estate being primarily liable: Pearce v. Diensthuber (1977), 17 O.R. (2d) 401, 81 D.L.R. (3d) 286 (Ont. C.A.). Here there were sufficient assets in the estate before the C.C.R.A. was paid, so this rule is not engaged.

14 Where one party pays funeral expenses, he or she is generally able to recover them from any person who has a higher obligation to pay them, even if that person had no input into or even knowledge of the funeral: Schara Tzedeck v. Royal Trust Co. (1952), [1953] 1 S.C.R. 31 (S.C.C.) at p. 37.

Funeral arrangements must usually be made in a very short period of time, sometimes before the personal representative is identified, and invariably before probate is issued. The family usually makes the arrangements without regard to who is in a technical sense legally responsible for either making the arrangements or paying the expenses. Because of the public interest in the prompt and dignified disposal of human remains, the law imposes a duty on those ultimately responsible to reimburse the person who actually incurs the obligation. The obligation to reimburse arises in restitution, not in contract, and is founded on considerations of necessity, unjust enrichment and public health: Goff and Jones, The Law of Restitution, (5^th ed., 1998), pp. 480-81. Thus the son in Routtu could recover from his father. See also Tkachuk v. Uhryn (1952), 6 W.W.R. (N.S.) 515 (Sask. Dist. Ct.) (daughter entitled to costs of funeral from estate); and Sargent & Son Ltd. v. Buday, [2000] O.J. No. 5476 (Ont. S.C.J.) (estate must reimburse son). The Applicant is therefore prima facie entitled to reimbursement for the reasonable expenses he incurred.

15 The only exception to this liability would appear to arise if the present Applicant voluntarily agreed to pay the funeral expenses, or to put it another way, voluntarily agreed to give up his right to reimbursement from the estate. Since these debts were the responsibility of the estate, this would have in effect been a gift from the Applicant to the estate. There is contradictory affidavit evidence on this point which cannot be resolved on this record. The same holds true for the assertion that the mother of the deceased agreed to pay for the luncheon. Those issues can only be resolved by a trial of an issue.

Reasonable Funeral Expenses

22 The liability of the estate, the personal representative, and the surviving spouse for funeral expenses is not unlimited. That liability is limited to expenses that are reasonable having regard to the deceased’s station in life and the other circumstances. The insolvency of the estate is one significant circumstance that must be kept in mind. It is also relevant whether those concerned knew or ought to have known at the time of the funeral that the estate was insolvent: Stag v. Punter (1744), 3 Atk. 119, 26 E.R. 872 (Eng. Ch. Div.). When an estate is insolvent, it is incumbent on all concerned to ensure that funeral expenses are reasonable.

23 There is no universal answer as to which expenses are reasonable and which are not. The funeral ritual in our society is intricately bound up with cultural and religious beliefs and practices. The law permits the expenditure of estate funds for a decent burial in accordance with the traditions of the deceased so long as extravagant and unreasonable expenses are avoided: Mullick v. Mullick (1829), 1 Knapp 245, 12 E.R. 312 (Eng. Ch. Div.). Where an estate is insolvent, those involved in the burial must limit themselves to the minimum expenses that will accord a dignified interment.

24 It follows that what is reasonable in one context may not be reasonable in another. The case law on what is “reasonable” is impossible to reconcile if this is not kept in mind. Where an estate is solvent, and funeral arrangements are made by the personal representative, he or she will be able to charge to the estate (as against the beneficiaries) all expenses consistent with the culture, religion and station in life of the deceased, even if some of the expenses might be viewed objectively as “luxuries”. Where the estate is solvent, but the funeral arrangements are made by someone other than the personal representative who now seeks reimbursement from the estate, the same rule will generally apply. However, a person seeking reimbursement must exercise greater restraint because the personal representative (who has the right to inter the body), the beneficiaries or ultimately a court, may disagree on what is fitting for the deceased. Some expenses that would be allowed to a personal representative as against beneficiaries may not be allowed to a third party as against the personal representative. Where the estate is insolvent, and funeral expenses are being asserted against creditors, or against someone with a higher duty to pay (see para. 11, supra), a stricter rule applies. With insolvent estates there is authority that only “necessary” expenses are allowed, although the better view is that the test is still “reasonableness”, but the insolvency becomes a primary factor: Edwards v. Edwards (1834), 2 C & M 613, 149 E.R. 905 (Eng. Exch.).

25 The debate respecting the reasonableness of funeral expenses in insolvent estates is summarized in Widdefield on Executors’ Accounts (5th ed., 1967) at pp. 1-2:

Funeral expenses, says Sir Edward Coke, according to the degree and quality of the deceased, are to be allowed of the goods of the deceased, before any debt or duty whatever. But an executor or administrator is not justified in incurring such as are extravagant, even as it respects the legatees or next of kin entitled in distribution: 3 Inst. 202. Nor, as against creditors, is he warranted in spending more than that which is absolutely necessary. For strictness, says Lord Holt, no funeral expenses are allowed against a creditor, except for the coffin, ringing the bell, and the fees of the parson, clerk and bearers; but not for the pall or ornaments: Shelly’s Case, 1 Salk. 296, 91 E.R. 262.

Perhaps, observes Dr. Burn, the expenses of the shroud and the digging of the grave ought to have been added: 4 Burn E. L. 348, 8th ed.

This statement of Lord Holt, though inappropriate to our times, suggests that the line be drawn so as to include what is necessary in the sense of giving a Christian burial, excluding the ornamental accompaniments and provisions for mourners and strangers which they might make for themselves. Thus, at the present day, the undertaker’s and grave digger’s necessary services shall be allowed in addition to those pertaining to religious exercises; also the cost of a plain coffin or casket, the conveyance of the remains to the grave, and the grave itself; all these being essential to giving the remains a decent funeral. On the other hand, mutes, weepers, pall-bearers in needless array; carriages for mourners, and especially carriages for casual strangers; floral decorations, refreshments, hired musical performers, and the processional accompaniments of a funeral, – all these, though appropriate, often, to the burial of those who have left good estates, are inappropriate to the poor and lowly, and to those whose creditors must virtually pay or contribute to the cost. Public demonstrations which increase the outlay, the attendance of societies to which the deceased belonged, military and civic escorts, and the like, are always properly borne by such bodies or the public thus gratified, rather than imposed as a charge upon a private estate which cannot readily bear the burden: Schouler on Wills, 1472.

26 In this estate I am satisfied that the charges for the clergyman, the burial plot and the interment (apart from the grave marker) are reasonable. I doubt that an expensive luncheon is ever justified in an insolvent estate, and it is disallowed; the persons who ordered the luncheon will be responsible for that expense. The parties did not actively challenge the reasonableness of the funeral service charges, or the casket and liner. On the record I can only say that they are higher than some seen in probate applications before the Court, and if there is any dispute there will have to be a trial of an issue on this point. The cost of the grave marker I will deal with separately in the next section.