Questions about who controls a cemetery plot, especially when it has been in a family for generations, often arise during estate administration. In Ontario, the answer lies not in ownership of land, but in the interment rights associated with a cemetery lot. Interment rights grant the holder the authority to bury human remains in a designated lot, but they do not convey ownership of the land itself.
These rights are regulated under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 (the “FBCSA”), which defines an interment rights holder as the person who holds the right to inter remains, erect markers, and access the lot in accordance with cemetery by-laws.¹
Interment Rights Versus Land Ownership
Owning a cemetery plot is different from owning real property. When an individual purchases a cemetery lot, they do not own the land in fee simple. Instead, they acquire interment rights, which are a form of chose in action—a personal property right that can be transferred, inherited, or assigned.
As the Ontario Superior Court of Justice explained in Smith v. Cataraqui Cemetery Co., 2013 ONSC 1936, the descendants of the original purchasers retained rights to unoccupied portions of a cemetery lot that had been acquired in 1869. The court held that the deed’s reference to rights for the heirs and assigns “forever” meant those rights persisted through generations. The decision demonstrates that interment rights can survive long after the original holder’s death, provided there is no evidence of abandonment or transfer.²
When There Is a Will
When a person who holds interment rights dies with a valid will, those rights generally form part of the estate and may be transferred to a designated beneficiary. The executor, acting under the authority of the will, is responsible for notifying the cemetery operator, submitting the original interment rights certificate, and ensuring that a new certificate is issued to the beneficiary.³
If the will explicitly refers to interment rights, the rights pass according to that clause. If the will is silent, the rights usually fall under the residue clause, which governs any property not otherwise specifically gifted. This principle was also considered in Smith v. Cataraqui Cemetery Co., where the court noted that interment rights can pass under a will’s general residue provision when they are not expressly mentioned.²
Cemetery operators must comply with the requirements of the FBCSA when transferring interment rights. Section 163 of Ontario Regulation 30/11 under the FBCSA provides that a new certificate must be issued to the new holder once the cemetery receives satisfactory documentation from the estate trustee.¹
Importantly, interment rights are not time-limited. Under section 161 of Ontario Regulation 30/11, cemetery operators cannot sell or issue interment rights for a fixed term, ensuring that such rights remain perpetual and transferable to future generations.
When There Is No Will
If a person dies without a will, the transfer of interment rights is governed by Ontario’s Succession Law Reform Act, R.S.O. 1990, c. S.26, which sets out the rules of intestate succession. In these cases, interment rights pass to the deceased person’s heirs in the same manner as other personal property.
In the absence of clear documentation, the cemetery operator or the Bereavement Authority of Ontario (BAO) may require proof of succession or a court appointment before recognizing the new holder. Where multiple family members claim rights, the matter may be referred to the Superior Court of Justice for determination, as seen in September 21 Inc. v. Registrar, Bereavement Authority of Ontario, 2023 ONSC 2715.
The FBCSA provides mechanisms to resolve uncertainty or inactivity regarding interment rights. Under section 49 of the Act, if rights have not been exercised for 20 years, a cemetery operator may apply for a declaration of abandonment. If granted, the operator may resell the rights. However, the Act also allows descendants or heirs to seek redress if they can later prove entitlement.⁴
Proving Historic or Inherited Rights
Tracing old interment rights can be challenging. Records may be incomplete, or the cemetery’s documentation may predate current legislation. To address this, section 110 of Ontario Regulation 30/11 requires cemetery operators to maintain registers containing the names of interment rights holders, the location of lots, and the names of those interred. These registers can be invaluable in resolving disputes or establishing lineage of ownership.¹
In historic cases, such as Smith v. Cataraqui Cemetery Co., the court acknowledged the difficulties of proving interment rights through multiple generations. Where evidence is limited, courts may rely on long-standing family practices, historical deeds, or the policies of the cemetery operator to determine entitlement.²
Abandonment and Redress
If interment rights appear to have been abandoned, the FBCSA sets out a clear process for cemetery operators. The operator must make reasonable efforts to locate the rights holder or their descendants before applying for a declaration of abandonment under section 49 of the Act. If such a declaration is issued, section 50 permits the operator to resell the rights, although any person with a legitimate claim may apply to the Registrar or the court for redress.⁴
This ensures that cemetery property is not permanently lost to families simply because of administrative gaps or generational distance.
Key Differences: Will Versus Intestacy
| Scenario | Who Controls Interment Rights | How Rights Are Transferred |
| Deceased with a valid will | Executor or estate trustee | Rights transfer according to the will or the residue clause. A new certificate is issued under section 163 of Ontario Regulation 30/11. |
| Deceased without a will (intestate) | Next-of-kin or court-appointed estate trustee | Rights transfer under the Succession Law Reform Act. The BAO or cemetery operator may require proof of entitlement. |
| Abandoned or disputed rights | Cemetery operator or BAO | Determined under sections 49–50 of the Funeral, Burial and Cremation Services Act, 2002 and relevant case law. |
Practical Considerations for Executors and Families
Executors and family members should:
- Review the will for any mention of cemetery plots or interment rights.
- Contact the cemetery operator to confirm the status of the interment rights certificate.
- Ensure the transfer complies with the FBCSA and cemetery by-laws.
- Retain documentation to avoid future disputes among descendants.
Where no will exists, heirs should seek legal advice to establish entitlement under the rules of intestacy and to ensure that cemetery records are updated properly.
Conclusion
The right to use a cemetery lot is not ownership of land but a unique, inheritable personal right governed by statute. Whether transferred through a will or by intestacy, interment rights in Ontario continue indefinitely, provided they are properly documented and maintained.
The law aims to preserve family continuity while ensuring cemeteries remain well regulated and respectful of those interred. Understanding the distinction between ownership and interment rights is essential for executors, heirs, and funeral professionals managing estates that include burial plots, especially those dating back generations.
References
- Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33, and Ontario Regulation 30/11, ss. 110, 161, 163.
- Smith v. Cataraqui Cemetery Co., 2013 ONSC 1936 (CanLII).
- Succession Law Reform Act, R.S.O. 1990, c. S.26.
- Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33, ss. 49–50.
- September 21 Inc. v. Registrar, Bereavement Authority of Ontario, 2023 ONSC 2715 (CanLII).
- Halsbury’s Laws of Canada – Cemeteries and Interment (2022 Reissue), LexisNexis Canada.
- Drafting Wills in Canada: A Lawyer’s Practical Guide, 3rd ed. (Gillingham, Solnik, and Kiva), LexisNexis Canada.
PLEASE NOTE: The content of this blog is provided for informational purposes only and does not constitute legal advice. Reading this material does not create a solicitor-client relationship. This information has been prepared in accordance with the laws currently applicable in Ontario and may not reflect future legal developments.
