There have been a number of complaints in the past made against funeral directors where there has been a dispute among family members concerning the right to make funeral arrangements.

The law is clear that whenever there is an executor or administrator, that person has the authority to dispose of the body.  This is regardless of whether or not there is a next of kin available who may want to make those decisions.  Therefore, whenever there is an executor, you should obtain directions regarding disposition from the executor.  (Only on rare occasions will there be an administrator, since an administrator is appointed by a court when the deceased has not left a will, or if the executor cannot or will not act.  Disposition of the body usually takes place before anyone has a chance to go off to court to seek appointment.)

Unfortunately, however, there may be cases where there is no executor and no one has yet been appointed administrator.  In these cases, the common law provides that the next-of-kin has the right to make the decisions regarding the disposition of the body.  The order of priority that the common law (i.e., judge-made law) has given to the next-of-kin is as follows:

a)  spouse 
b) children
c) grandchildren
d) great grandchildren
e) father or mother
f) brothers or sisters
g) grandparents
h) uncles, aunts, nephew and nieces
i) collateral relatives of more remote degree

            Therefore, when more than one next-of-kin wishes to make arrangements, you should give priority to the person highest on the list.

It should be noted that “spouse” includes a person of the same sex as the deceased or a person of the opposite sex who was living in a conjugal relationship with the deceased.  The Estates Act provision which addresses who should be named an administrator by the court defines “spouse” as “the person to whom the deceased was married immediately before the death of the deceased or person of the opposite sex or the same sex with whom the deceased was living in a conjugal relationship outside marriage immediately before the death”.

Therefore, a husband, wife or person of the same or opposite sex who was living in a conjugal relationship with the deceased immediately before death should have priority over any of the next-of-kin in (2) through (9) above.

What happens if the deceased was a child and you know that the surviving parents are separated or divorced?  Who takes priority in that situation?  There does not appear to be any judge-made law on this issue but in most cases, if the child was a minor, one parent will have custody, which will give him or her the right to make this kind of decision.  In such a case, the funeral director should ask for proof of custody.  (This will have to be done tactfully, of course, but proof of custody will have been requested by schools, etc., and so the parent with custody will be used to such a request.)  If custody of the child was joint, then it is less likely that there will be a disagreement over disposition, since courts will not usually order joint custody if the parents cannot cooperate with each other in making decisions about the child.

If the feuding next-of-kin are two children of the deceased, then it may be appropriate to give priority to the eldest child rather than automatically to a son over a daughter (as the common law originally mandated).  However, if both are insistent on making arrangements and those arrangements conflict, it may also be appropriate to insist that they seek a court appointment as administrator of the estate.  In that case, they will need to consult with estate lawyers to assist them with an application to court.  Once they realize the time and cost involved, the parties may be able to resolve their differences and give you consistent directions.

However, if you have had no warning that there is any conflict among the next-of-kin you are entitled to rely on the signed declaration given by the person making the arrangements that he or she has the legal authority to make them.  It is reasonable for the funeral director to believe that a parent will act in the best interests of a child (or a child will act in the best interests of a parent, in the case of grown children) when making funeral arrangements.  In that case, where you are not aware of any conflict, and the person arranging the funeral is willing to formally declare in writing that he or she is legally authorized to arrange burial or disposition, you are entitled to rely on that declaration.

This has been supported by a decision of the Licence Appeal Tribunal released on July 11, 2000, (Re:Sopinka).  The Licence Appeal Tribunal stated that:

If a standard was imposed on funeral service providers that they were not to release the cremated remains or allow a person to arrange a funeral without proof that person is an executor or administrator or has the consent of all possible interested parties, it would prove to be a cumbersome and unworkable procedure.

In cases where you are aware that there is a conflict between the next-of-kin, then you need to investigate further.  You should keep in mind the priority list established by the common law, and as a last resort, suggest the parties seek a court appointment as administrator.