In Ontario, the legal responsibility for funeral and burial arrangements normally rests with the estate trustee, who is appointed either through a will or by the court. When a person dies without a will, however, there is no appointed estate trustee until the court issues a Certificate of Appointment of Estate Trustee Without a Will, commonly referred to as probate. Until that point, there is no formal legal authority over the deceased person’s body or estate.
Funeral and burial arrangements, of course, cannot wait for the court process to be completed. This delay creates a practical gap, leaving families and funeral directors to rely on long-standing custom and necessity. In practice, funeral homes usually take instructions from the next of kin who has the closest relationship to the deceased person, provided that relationship can be verified.
The Vital Statistics Act requires certain documentation before a body can be buried or cremated, but it does not identify who has the right to give instructions. Similarly, the Funeral, Burial and Cremation Services Act governs the handling and sale of funeral services but does not specify which family member has the first right to make disposition decisions. As a result, the order of priority among family members is guided by a combination of the Estates Act, the Succession Law Reform Act, and relevant court decisions.
Under these laws, the usual hierarchy of next of kin begins with the spouse, followed by the children, parents, siblings, and then more distant relatives. The person with the closest legal connection to the deceased person, and who is most likely to be appointed as estate trustee by the court, is generally treated as having authority to make funeral and burial arrangements as a matter of practical necessity.
Ontario courts have confirmed this approach. In the case of Catto v. McKay, the court found that the right to decide how and where a person is buried is tied to the appointment of the estate administrator. The spouse, as the most appropriate person to act as administrator, was granted the authority to make that decision.
Disagreements among family members sometimes arise, especially when there is no will. When more than one person claims authority, such as adult children who have different opinions about burial or cremation, the dispute may be brought before the Superior Court of Justice for direction. In these situations, funeral homes are generally encouraged to wait until the court appoints an estate trustee and to take instructions only from the person who has been officially appointed once the Certificate of Appointment has been issued. This ensures that the funeral home receives direction from the individual who holds clear legal authority and helps to avoid the risk of liability.
If there are no known relatives, or if no family member is willing or able to act, the Office of the Public Guardian and Trustee may assume responsibility under the Crown Administration of Estates Act.
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.
For now, funeral directors should continue to rely on the established order of next of kin, carefully document the basis for accepting instructions, and approach each situation with both legal awareness and compassion.
If you are assisting a family where the deceased person did not leave a will, RMS Estates Law can help clarify who has authority, assist with the application to become estate trustee, and provide legal support in cases of disagreement or uncertainty.
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.
