Funeral directors regularly encounter families who are grieving and uncertain about who has the legal authority to make funeral and burial decisions. When conflicts arise among relatives, or when there is no will, funeral directors must understand their professional obligations and the legal rules that determine who may give lawful instructions. Acting without clarity can expose funeral directors to legal and regulatory risk.
This article summarizes Canadian and Ontario legal principles, leading cases, and professional guidelines to help funeral directors manage disputes with confidence, sensitivity, and professionalism.
The Executor or Estate Trustee Has First Authority
Across Canada, the person with the legal authority to decide funeral and burial arrangements is the executor or estate trustee. This individual controls the deceased persons remains, makes the contract with the funeral home, and ensures payment. If an executor exists (either appointed in a will or by the Court through a Certificate of Appointment), funeral directors must take instructions from that person, regardless of disagreements among family members.
When There Is No Will
In Ontario, neither the spouse nor the next-of-kin have an automatic legal right to control funeral or burial arrangements. The authority belongs to the person who is legally entitled to represent the estate. When there is a will, that person is the executor appointed in the will. When there is no will, an estate trustee may or may not be appointed by the Court. If a Court appointment is needed, section 29 of the Estates Act governs the process.
Section 29 of the Estates Act permits the Court to appoint the spouse or conjugal partner, the next of kin, or both. Courts have confirmed many times that the legislation does not establish priority among these groups. This has been clearly stated in Mohammed v Heera (2008), Lajhner v Banoub (2009), and Catto v McKay (2017).
When no executor exists, funeral directors must determine who is legally entitled to act, based on the Estates Act, accepted legal principles, and family agreement. If conflict is present, funeral directors must pause until the dispute is resolved.
How Courts Decide Who Should Be in Charge
When the Court is asked to choose an executor, it looks to several factors. These include whether the applicant lived with the deceased in a conjugal relationship, whether the person has a conflict of interest, their residency in Ontario, their ability to administer the estate fairly, and their connection to the deceased person’s wishes. Section 5 of the Estates Act is important because a non-resident of Ontario cannot be appointed to administer an estate. This was a central factor in Catto v McKay (2017), where it was concluded that the Court would not appoint the deceased’s mother who lived outside Ontario.
Case law also indicates that spouses are often the first individuals considered for appointment because they are usually closest to the deceased and most aware of their wishes. This perspective appeared in a number of decisions in the 1990s and continues to influence modern appointments, although it remains a matter of suitability rather than legal priority.
The Trend in Court Decisions Over Time
Although there is no legal priority for any class of relative, Ontario courts have shown a strong and consistent trend since the 1990s. Courts generally appoint the spouse or common law partner as the most suitable administrator, unless there is a clear disqualifying factor such as non-residency, conflict of interest, or family discord. This trend can be seen across decisions such as Mohammed v Heera (2008), Lajhner v Banoub (2009), Gardiner v Whetung (2010), Prelorentzos v Havaris (2015), and Catto v McKay (2017).
Spouses and conjugal partners are usually considered the individuals best positioned to honour the deceased’s wishes. Nevertheless, this is not automatic, and funeral directors must avoid assuming priority where none exists.
How Courts Resolve Disputes
When there is disagreement among relatives, courts consistently hold that the executor or administrator retains the authority to make decisions about the disposal of human remains. This was affirmed in Mitten v Peterson (2025), where the Court confirmed that the estate representative has the ultimate authority in cases of dispute. Similar guidance appears in Gibson Re (2002).
Funeral directors should not attempt to resolve legal conflicts themselves. When disputes arise, they should recommend that the family seek assistance from the Registrar, the Board of Funeral Services, or legal counsel.
Professional Obligations of Funeral Directors When Handling Conflict
Funeral directors in Canada have professional obligations when handling conflicts over funeral instructions. These obligations are grounded in legislation, Tribunal decisions, and professional guidelines.
Funeral directors must recognize conflict and must not act on disputed or unclear instructions. They must identify the correct decision maker and ensure they are receiving lawful and valid direction. This standard of professional knowledge was identified in McArthur Re (1999), which emphasized that funeral directors must understand who may legally represent an estate and when further clarification is required.
Ontario 7954FDEA Re (2013) further advised that funeral directors should investigate when they know conflict exists. They should confirm the authority of the person giving instructions and ensure that arrangements are made responsibly and sensitively.
Professional obligations also require funeral directors to
- act with sensitivity and neutrality
- maintain confidentiality and respect for all family members
- avoid taking sides in family disputes
- cooperate with other service providers
- keep accurate records of authorization and decisions
- document pre need agreements and instructions that affect service delivery
These obligations support public trust in the profession and ensure compliance with regulatory expectations.
Respecting the Deceased Persons Wishes
Funeral directors should encourage families to communicate the wishes of the deceased. While these wishes are important, they are not legally binding on the executor in many jurisdictions. Courts and estate guidelines recommend that wishes be honoured when they are reasonable and proportionate to the size of the estate.
On the Horizon
A new legislative development is on the horizon. The Government of Ontario has introduced Bill 46, which, once enacted, will create a regulation-based list of priorities of persons under the Funeral, Burial and Cremation Services Act. This list will clearly set out who has the first right to make decisions about the remains, reducing the uncertainty that currently exists for families and funeral professionals. However, Bill 46 has not yet received Royal Assent, and therefore it is not yet in force . Until Bill 46 becomes law and its relevant provisions come into force, funeral and burial decision-making continues to rely on existing law (common law, the Estates Act, and court discretion in intestacies).
Final Guidance for Funeral Directors
Important points include the following:
- The executor or estate trustee has the primary legal authority.
- There is no automatic entitlement for any family member to control funeral or burial arrangements.
- An estate trustee is not always appointed when there is no will.
- The person with legal authority is the person entitled to represent the estate, which depends on the Estates Act, case law, and the absence of conflict.
- If family members disagree, funeral directors must pause, investigate, and ensure directions come from the correct person.
- Professional expectations require funeral directors to recognize conflict, avoid acting on disputed instructions, and encourage families to obtain legal clarification where necessary.
By understanding these rules and professional obligations, funeral directors can manage conflict with confidence, protect their practice, and provide respectful service to grieving families.
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.
