Who Has Final Responsibility for Disposition?
Who Has Final Responsibility for Disposition?
What to Do When Conflicts Arise
Anne-Marie McLauchlan, Dale & Lessman Barristers & Solicitors
c/o Ontario Funeral Service Association
The general principle of law with respect to who has the right to dispose of a body (or make arrangements for the disposition of a body), is that the Executor of the deceased has the right.
Where there is no Executor, either because there is no will, or because the will does not name an Executor who is able and willing to act, the law is not quite as clear.
There is not statute which sets out who has the right to make arrangements for the disposition of a body, or who has the obligation to do so (other than legislation dealing with bodies which are unclaimed by next of kin, which bodies which are unclaimed by next of kin, which bodies are the responsibility of the Municipality.) Accordingly, one must look at case law to determine who has such rights and responsibilities. The case law, as one might anticipate, is quite sparse.
The general principle appears to be that the closest next of kin have the right to possession of the body for the purposes of its disposition. Only certain people (spouses, parents of minors, the Municipality.) appear to have an actual responsibility to make arrangements for the disposition of the body.
The right and responsibility falls first on the surviving spouse, if any.
While this clearly includes a married spouse, there is no law as to whether it would also include a common law spouse. One could argue that a person who is required to provide support under the provisions of the Family Law Act would also have an obligation (and right) to arrange for the disposition of the body. (This could include a married spouse, or a common law spouse who has lived with the deceased continuously for a period of not less than three years. It could also include a common law spouse who was in a relationship of some permanence with the deceased. For example, the natural or adoptive parents of a child would be in a relationship of some permanence.) One could, however, also argue that arranging for the disposition of a body is not a form of “support” in the usual sense.
Parents would probably have a right (although not a responsibility) to dispose of adult children without spouses or adult children of their own.
Children have the right (but not necessarily the responsibility) to possession of the bodies of their parents for the purposes of dispositions; if there is more than one child, they all have an equal right to possession of a body for the purposes of preservation and burial.
If there is no spouse, parent, or adult child, one would expect that the right to dispose of the body would then go to siblings, aunts and uncles and grandparents, and more remote relatives, in that order. It does not appear that such persons would have any responsibility to make such arrangements.
The responsibility for disposing of an unclaimed body falls upon the municipality in which the person dies.What can a funeral home do when there is conflict as to who wishes to make arrangements for the disposition of a body?
If there is a will, the Executor(s) named in the will have the right to dispose of the body. Accordingly, if there appear to be two or more people fighting over who wants to make the arrangements, the funeral home should ask to be provided with a copy of the will of the deceased. The funeral director should be given some assurance by the person presenting the document that it is the last will of the deceased, and that it has not been revoked. (Marriage after the date of a will which was not made in contemplation of the marriage revokes the will, unless the spouse elects in favour of the will.)
If no one can produce a will, or the person named in the will as Executor cannot or will not act, Instructions should be accepted from the spouse of the deceased. If there is no Executor and there is a married spouse, from whom the deceased was separated, and a Common-law spouse, and there is a dispute between them, in the absence of any court order, the married spouse would have the right to dispose of the body. What should the funeral home do if there is no Executor, no spouse, and two or more adult children are disagreeing about funeral services? The funeral home should not act until the parties have worked out their differences or one party has obtained a court order in their favour. Unless the funeral home is made aware of a conflict, they are entitled to rely upon the apparent authority of the person giving them instructions. A representation by the person making the arrangements that they have the right to make such arrangements (which most funeral service contracts contain) would be apparent authority. The foregoing comments will not cover very situation of conflict which a funeral home may run into. In such situations, funeral homes should consult with their legal counsel before they accept instructions from one party or the other.
Did You Know?
The following revisions to the Insurance Act were published in The Ontario Gazette.
26. (1) The insurer shall pay a funeral benefit in respect of an insured person who dies
as a result of an accident.
(2) The funeral benefit shall pay for funeral expenses incurred in an amount not
exceeding: $6,000 or if the optional death and funeral benefit referred to in Section 27 has been purchased and is applicable to the insured person, the amount listed by the optional benefit.
27.(1)4. An optional death and funeral benefit that:
i) fixes the amount payable to a deceased person’s spouse at $50,000, instead of the amount specified in subparagraph I of paragraph l of subsection 25(2).
ii) fixes the amount payable to each of a deceased person’s dependants and to each person to whom the deceased person had an obligation at the time of the accident to provide support under a domestic contract or court order at $20,000 instead of the amount specified in subparagraph 1 of paragraph 2 subsection 25(2), and
iii) fixes the maximum payment for funeral expenses at $8,000 instead of the amount specified in clause 26(2)(a).