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.