It is not unusual for a dispute to arise amongst family members regarding the post-death arrangements, not just the funeral service or celebration of life arrangements, but also what happens to the body. Burial or cremation? Where will the final resting place be? Many do not know who has the right to make these decisions if there is no unanimous agreement.
In Ontario, the estate representative has the ultimate say in how a corpse will be dealt with – either the Estate Trustee as named in a will or a representative otherwise appointed by the Court. (If there is no representative for the estate named in a will, an application seeking direction from the Court may be required so the Court can decide who, at least on an interim basis, shall be appointed the estate representative with the authority to deal with disposing the body).
Although the law in Ontario does not recognize any ownership rights in a corpse, it does impose obligations on those who are responsible for dealing with the body. The estate representative is obliged to dispose of the body in a manner befitting the deceased’s station in life and at an expense that is not too extravagant or unreasonable. The expense incurred must not be unfair to creditors of the estate. The representative must also advise the beneficiaries of the particulars of how the body is being disposed.
The representative is not bound by any wishes expressed by the deceased in their will, in a memorandum, or expressed verbally by the deceased to family members. Nor is the representative bound by family tradition or expectations/wishes of the surviving family members. The estate representative is, however, required to honour a consent that was signed by the deceased with respect to donating body parts. The estate representative is also bound by any directives from a coroner.
Given the authority provided to the estate representative to dispose of the body, the appointment of that representative is an important decision and should be carefully reviewed with a lawyer.
