By Pavneet Grewal and Zachary Murphy-Rogers

The Law

In British Columbia, under the Cremation, Interment, and Funeral Services Act (the “Act”), the executor named in a will has the primary authority to control the disposition of human remains. But what happens when multiple executors are named in the will and they disagree on what should happen to the remains of their deceased loved one?

A recent Nova Scotia case, Curry v Curry, outlined the guiding principles on the disposition of cremated remains and the dispute resolution process that applies when there are multiple executors who do not agree on the disposition method. In summary, there are minimal standards of fairness that executors must meet in decision-making, and their decision must result in a dignified and respectful disposition of the deceased’s remains.

In Curry, the deceased (the “Deceased”) named her three daughters as co-executors under her will. Two of the daughters (the “Majority”) wanted to inure (lay to rest) all of the Deceased’s remains with the Deceased’s late parents. One of the daughters (the “Minority”), on the other hand, wanted to divide the Deceased’s remains, inuring part of the remains with the Deceased’s parents, part with the Deceased’s late husband, and part to be divided among the Deceased’s surviving children. The Deceased’s will included a “majority rule” provision to account for “any differences of opinion” among the co-executors.

Despite this provision, the Court deviated from the Majority’s wishes. The Court held that although the Majority was entitled to deference, and their proposed disposition method would have resulted in a dignified and respectful disposition of the Deceased’s remains, the Majority failed to meet the minimal standards of fairness in decision-making. The Majority withheld information from the Minority (an unsigned letter of the Deceased which said she wanted her ashes with her parents and not her husband) and failed to consider specific information presented by the Minority and other third-parties regarding the Deceased’s wishes (later in life the Deceased said that she wanted her ashes to be split and partially with her parents and partially with her husband), due to their fixation on what they thought was right.

As a result, the Court found that the decision-making process was rendered pointless. Despite this finding, the Court did not simply adopt the Minority’s proposal. The Court found that having the Deceased’s children retain a portion of the remains would leave uncertainty as to whether the remains would be disposed of in a dignified and respectful manner. Therefore, the Court exercised its discretion and fashioned an entirely distinct disposition method, ordering for half of the Deceased’s remains to be inured with the Deceased’s late parents and the other half to be inured with the Deceased’s late husband.

Takeaway

This case demonstrates the contextual nature of the Court’s analysis in resolving disputes over the disposition of human remains. Although Curry is a Nova Scotia case, the disposition of human remains is a relatively novel issue, and there are similarities between the legislation of Nova Scotia and British Columbia. As mentioned at the outset, section 5 of the Act gives an executor named in the will primary authority to control the disposition. If there are multiple executors and they disagree on what should happen, British Columbia courts may conduct a similar analysis to the Court in Curry. If you are a co-executor, it is important to maintain communication and the sharing of documents/information with your co-executors to ensure a fair decision-making process.

If you are a will-maker, it is important to make your wishes clear. The Court in Curry stated that leaving written instructions confirming what you want to happen to your remains is not determinative of what will happen. However, British Columbia law says otherwise. Section 6 of the Act says that a written preference is binding on the person who has the right to control the disposition. Therefore, it is important to explicitly set out any wishes you may have with respect to the handling of your remains (e.g.: burial versus cremation, and the location(s) of burial or inurement/spreading of ashes).

What if There is No Will?

If there is no will, then there is no named executor. In this case, it can take some time for a person to receive a Grant of Administration (permission to manage affairs) with respect to the estate. Under section 5, the Act sets out a priority order for who may control the disposition of human remains: the deceased’s spouse, child, grandchild, parent/guardian, sibling, etc. This means that if there is no will, a person other than who the deceased would have chosen may have the right to direct what happens to their remains. Section 6 of the Act provides that this person must consider the deceased’s written preferences. Therefore, common practices such as simply telling family members what you would want to have happen with your remains may not be sufficient to ensure your wishes are followed.

For further information or questions, please feel free to contact Zachary Murphy-Rogers or another member of the Clark Wilson Estates & Trusts group.