Just how extravagant should a deceased person`s funeral and final resting place be? This issue repeatedly surfaces each time the cycle of life brings death within our midst. Despite the existence of some fundamental rules of law, there are some twists and turns that unfold from time to time…
First, the executor of the deceased`s estate has the right to possess the body for purposes of disposing of it. In this regard, the place and manner of the disposal is decided by the executor, not the wishes expressed by the deceased while he or she was alive, or by his or her Will or any non-binding memorandum that he or she may have left. It follows, therefore, that a direction in a Will to deliver the body to someone other than the executor is void.
An interesting mention is that there is no ownership in the body of a deceased person. If there is no executor, an appointed administrator or Estate Trustee will be entrusted with this duty. Where none of these exist, the person who has highest priority to apply to be the administrator of the estate has the right to possess the body for burial purposes.
One of the common law duties of the executor, as custodian of the dead body, is to dispose of it in a manner corresponding to the deceased’s station in life and see to it that no undue expense is incurred: Tzedeck v. Royal Trust Company  1 SCR 31. It was further stated in this case that the executor is liable to pay the reasonable funeral expenses, even without any order on his part, if he has assets available for the purpose. But as is often asked when weighing competing legal claims, what is “reasonable?”
The case surrounds a claim by the Appellant, Schara Tzedeck (the “Society”), for money payable by the deceased’s executor appointed in her will, and which was the Royal Trust Company. The claim was for $3,000.00 as set by the Society`s Cemetery Board in payment of goods, services and materials provided regarding the funeral of the deceased. However, price had not been agreed upon. In fact, no one on behalf of the appellant Society contacted the Royal Trust Company until after the funeral. It was the Royal Trust Company’s position that the money claimed was exorbitant.
Interestingly, the Society`s statement of claim described that its Cemetery Board has the sole right and discretion to set and arrange a burial fee in accordance with the principles of the Jewish faith, taking into consideration, amongst other things, the character and nature of the deceased; the value of his or her estate; the persons dependant for support upon the said estate; and the manner in which the deceased in his or her lifetime discharged his or her obligations of giving and doing charity in accordance with the principles of the Jewish faith.
The Society testified that in many cases, it conducted burials without charge for the estate of persons unable to pay and that the estates of people of means must pay for the burial of the poor of Jewish faith. Nevertheless, the Court dismissed the appeal, concluding that the amount awarded at trial in the amount of $400 was reasonable and just on the evidence submitted, including the fact that charges of commercial undertakers at that time for undertaking, funerals, burial and cemetery services of the kind provided by the Appellant in respect of the deceased would amount to $200 to $600. Thus, although the deceased was of considerable means and her station in life was to be a primary consideration in determining how she was buried, this factor did not outweigh the evidence in the Court’s opinion.
A couple of other points of general interest are that: 1. relevant provincial legislation stipulates that the burial expenses of an impoverished person or a dependent of an impoverished person shall be paid by the municipality in which the person resided at the time of his or her death; and 2. if a gravestone has been purchased, case law dictates that the executor has the duty to provide one also consistent with the station in life of the deceased and the size of the estate. Furthermore, the inscription must be accurate in content and dignified in tone.
If you have questions as to the reasonableness of funeral or burial expenses for a deceased individual or would like general advice regarding the duties of an estate trustee, please contact Andrea Kelly.
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.