Saturday, October 01, 2005

Who Decides What Happens to Our Remains?

Not all estate disputes are about money and property. What happens when the family cannot agree on what to do with great-grandad's remains?

In British Columbia, the Cremation, Interment and Funeral Services Act, S.B.C. 2004, c. 35, section 5, sets out who has the right to control the disposition of the remains of a deceased person by setting out an order of priority.

If the deceased person named an executor in his or her will, it is the executor who has the highest priority, and he or she may direct that the remains be buried or cremated, and where they will be kept. If the deceased does not have an executor, then the deceased’s married spouse or a person who was living with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, has the right to make these decisions. The legislation then gives priority to the nearest relatives in the following order: an adult child, an adult grandchild, the guardian (if the deceased is a minor), a parent, an adult brother or sister, an adult nephew or niece, an adult next of kin. If there are two or more people of equal rank, such as two children, then the eldest has priority. If a person with priority is not available or unwilling to give instructions, then the right to control the disposition of the remains passes to next person with priority.

The person with the right to control the disposition of the remains is required to carry out the deceased’s preferences as expressed in the deceased's will or preneed cemetery or funeral services contract, as long as compliance with the preference is consistent with the Human Tissue Gift Act, and would not be unreasonable or impracticable or cause hardship (section 6).

The person with the right to control the disposition of human remains should not exercise that right capriciously, and the courts can order that the remains be disinterred in appropriate circumstances. Take a case decided a few years ago in Kamloops, B.C. , called Popp v. Popp, 2001 BCSC 183. In Popp, the deceased’s husband had an urn with the deceased’s cremated remains buried in a plot designated for the husband’s parents. The husband stated that when his father died he intended to have the urn removed so that his father could be buried there. He did not say what he would do with the urn. Several other family members, including a son and siblings, wanted the deceased’s remains disinterred, and inured in a columbarium at Hillside Cemetery in Kamloops. There was evidence that the deceased had said that she did not like the dark and did not want to be buried in the cold ground. The court ruled that the husband was acting capriciously, and that the remains should moved to the columbarium as the other family members requested.

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