One of the first decisions facing a family when a loved one dies is the question of what to do with the deceased’s bodily remains. It is sometimes a difficult decision, especially when there are conflicting religious views and contentious family relationships.

In British Columbia, section 5 of the Cremation Internment and Funeral Services Act S.B.C. 2004, c.35 sets out a statutory hierarchy of persons who are entitled to control the disposition of the deceased’s bodily remains.

Although one might expect a spouse or close relative to have first priority, the Act states that it is the personal representative or the Executor named in the deceased’s Will who controls the disposition of the remains.

Many people make no provisions at all in their will for their funeral wishes.  They are content to leave the details to their executor and loved ones. If it does matter to you however, be sure to provide reasonable, practical instructions in your will that do not place an undue hardship on your executor or family members.

In British Columbia, if the deceased included written instructions in a will regarding specific funeral or burial provisions, or entered into a funeral services contract prior to death, then, as per s. 6 of the Cremation Internment and Funeral Services Act, those wishes are binding on the executor, unless they would be unreasonable, impractical or cause undue hardship. A further consideration is found in the Supreme Court of Canada’s decision in Schara Tzdeck v Royal Trust Co [1952] where the Court stated that, at common law, an executor has a duty to dispose of the deceased’s remains in a manner suitable to the deceased’s station in life.

In carrying out his or her duties, an executor may not act capriciously with respect to the disposition of human remains. In Re Popp Estate, 2001 BCSC, the deceased was cremated and her executor husband temporarily buried her ashes alongside the remains of his mother in a plot that had been intended for his mother and father. It was the husband’s intention, upon the death of his father, to remove his wife’s ashes and place his father’s remains beside the mother’s. He did not provide a plaque or headstone for his deceased wife. The deceased’s sister petitioned the Court pursuant to s. 59 of the Cremation Internment and Funeral Services Act for an order that the deceased’s ashes be disinterred and placed in a separate columbarium. The Court held that the husband’s lack of a plan for the permanent burial site of the deceased’s remains was “irregular or unpredictable” as well as “unaccountable” and therefore “capricious”. The Court agreed with the deceased’s sister and ordered that the remains be disinterred and inurned in the columbarium.  Costs were awarded against the executor husband.

In Kartsonas v Stamoulos 2010 BCCA, the family of the deceased took their dispute over the disposition of the deceased’s remains to the B.C. Court of Appeal. In that case, the deceased executed a will in 1978 naming his son and daughter as executors and beneficiaries of his estate. At some point following that he became estranged from his children and subsequently executed a new will in 2007 appointing his niece as executor and her son as sole beneficiary of his estate.

The deceased’s children initially brought an application in B.C. Supreme Court for an order that they have the sole right to dispose of their father’s remains. The main issue at that time was whether the deceased would be buried in British Columbia or Greece. The trial judge ordered the burial to take place in Vancouver and awarded joint custody of the burial to the deceased’s children and the executor niece. When the children and niece were unable to agree on whether the deceased should have a religious burial service, they were back before the court with another contested application. The children wanted a religious Greek Orthodox service while the niece argued the deceased was an atheist and did not want a religious ceremony. On a balance of the evidence, the trial judge ordered that the children have the sole right to control the disposition of their father’s remains.

The niece appealed the trial decision on the basis that the deceased was estranged from his children at the date of his death and had entrusted her to carry out his funeral arrangements. She also relied on a Representation Agreement executed at the same time as the 2007 will wherein the deceased appointed her as his representative and directed that she have complete authority over his funeral arrangements.

The Court of Appeal referred to s. 5 of the Cremation Internment and Funeral Services Act.  When a person brings a court application pursuant to s 5(4) of the Act for the right to control the disposition of a deceased’s remains, s. 5(5) states the court must have regard to the rights of all persons having an interest and give consideration to:

• The feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased;
• 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;
• Any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains, and;
• 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.

The Court of Appeal refused to interfere with the trial judge’s exercise of discretion in his consideration of the above provisions. The Honourable Mr. Justice Tysoe writing for the majority noted that, although the 2007 will and representation agreement expressed a preference as to who should have conduct of the deceased’s remains, there was no specific request for a non-religious funeral. The appeal was dismissed.

In summary, if you have specific funeral or burial wishes, be sure that they are reasonable and practicable, include them in your will and be sure to appoint an executor you are confident will follow your instructions, not only with respect to the whole of your estate but also regarding your burial requests.   Discuss your wishes with family members and consider whether your estate can bear the costs of your funeral directions.  If you want your ashes scattered from the peak of Mount Kiliminjaro, leave clear instructions and be sure someone is ready, willing and and able for the hike!

Disputes often arise between co-executors or between beneficiaries and an executor during the course of the administration of an estate.  Often these disputes involve the way in which the executor is carrying out his or her duties.  Sometimes there is a long and acrimonious history between the parties that remains unresolved and contentious long after the will-maker’s death.

Unfortunately the situation will often deteriorate to such an extent that either co-executors or one or more of the beneficiaries will consider legal action to remove or replace an acting executor.  Nothwithstanding difficult or untenable relationships between the parties involved, the decision to apply to the court for an order to remove an executor should not be taken lightly.

Generally speaking, in BC the test to remove an executor is based on whether there is prejudice to the estate or the beneficiaries. The courts start from the position that a will-maker is entitled to appoint the executor of his or her choice and that discretion will not be lightly interfered with.  In a leading decision of the BC Court of Appeal, the court held that an executor would have to act “in a manner that endangered the estate, or that as executor she or he acted dishonestly, without proper care, or without reasonable fidelity”.

Situations in which an executor has been successfully removed include:

•  Where the executor’s duties were in conflict with his or her personal interests;
•  Estate assets were endangered or dissipated by the executor’s conduct;
• The executor took a benefit at the expense of the estate;
• The executor was declared bankrupt or convicted of a felony offense;
• The executor failed to distribute the assets in a timely manner following the expiration of what is known as the executor’s year; or
• The executor was incompetent or mentally incapable.

This is by no means an exhaustive list. Each application will depend on the particular facts.  Every estate is as different as the families and individuals involved. As stated earlier, the decision to apply to court should not be taken lightly. It should only be considered when all other avenues, including communication and negotiation between the parties, have failed or if the assets of the estate are in immediate and real danger.

Costs are an important consideration. If an executor successfully defends an application for removal, the estate may be liable for his or her costs. If an executor is removed, there will have to be a passing of his or her accounts and the estate will have to pay those fees. Any subsequently appointed executor will also be entitled to fees for the administration of the estate.

In conclusion, if you are a beneficiary under a will or a co-executor and you believe an executor is acting in a manner that is prejudicial to either the estate’s assets or your interests under the will, consult a wills and estates lawyer regarding your legal remedies.