In a recent Alberta case, two sisters went to court when they could not agree on their brother’s final resting place.

Testator Lived in Different Parts of Alberta

The testator was born in Vilna, Alberta in 1954. He did his initial schooling in Vilna and completed it at the Michener Centre in Red Deer. He had compromised health for most of his life, including cognitive and mobility challenges, and his parents acted as his guardians. He had two sisters.

At age 21, the testator moved to St. Paul, where he lived independently for many years, often returning to Vilna on the weekends to see his parents.

After his father died in 2000, the testator moved back to Vilna, living with his mother, until she died in 2012. 

 After the mother’s death, the older sister became his lead guardian. Unable to find suitable accommodation for him in Vilna, she arranged for him to move to Edmonton, where he spent approximately one year living with her and her husband.

Later, the testator was moved into community living and supportive services residences in Edmonton.

Sisters Can’t Agree on Final Resting Place

The testator died on January 25, 2021, at the age of 66.  

He left a will naming both of his sisters as his personal representatives.  He had never married or had an adult interdependent partner, and he left no children.

The two sisters could not agree, as his personal representatives, about where the testator should be buried: in Vilna, where he spent most of his life, living with his parents, or in Edmonton, where he moved after his parents had died, and lived for about ten years.

As a result, the younger sister made an application for advice and directions to the court.

Alberta’s Law on Burial Disputes

In Alberta, s. 6 of the Estate Administration Act states:

Disposition of human remains

6   The Funeral Services Act and the Cemeteries Act and the regulations under those Acts apply to the determination of who has the authority to control and give instructions for the disposition of human remains and the making of funeral arrangements.

Both of the regulations are identical under the Funeral Services Act and the Cemeteries Act, which state:

Subject to an order of the Court, the right to control the disposition of human remains or cremated remains vests in and devolves on persons in the following order of priority:

a)      the personal representative designated in the will of the deceased;

b)      the spouse or adult interdependent partner of the deceased if the spouse or adult interdependent partner was living with the deceased at the time of death;

c)      an adult child of the deceased;

d)      a parent of the deceased;

e)      a guardian of the deceased under the Adult Guardianship and Trusteeship Actor, if the deceased is a minor, under the Child, Youth and Family Enhancement Actor the Family Law Act;

f)      an adult grandchild of the deceased;

g)      an adult brother or sister of the deceased;

h)      an adult nephew or niece of the deceased;

i)      an adult next of kin of the deceased determined on the basis provided by sections 67 and 68 of the Wills and Succession Act;

j)      the Public Trustee;

k)      an adult person having some relationship with the deceased not based on blood ties or affinity;

l)      the Minister of Human Services.

(3)  If, under subsection (2)(c) to (h), the right to control the disposition of human remains or cremated remains passes to persons of equal rank, in the absence of agreement between or among them, the order of priority begins with the eldest person in that rank and descends in order of age.

(4)  If the person who, under this section, has the right to control the disposition of human remains or cremated remains is not available or is unwilling to give instructions, that right passes to the next available qualified person.

Because the disagreement was between two personal representatives, it was left to the court to decide on the testator’s final resting spot.

Court Sets Out Factors to Consider in Deciding Burial Location

The court then proceeded to analyze the following factors in making its decision:

  • The impact of the testator’s will;
  • The testator’s wishes as expressed before his death;
  • The testator’s quality of life in Vilna and Edmonton;
  • His parents’ preference;
  • The relative costs of the two place-of-burial options;
  • The nature of the two cemeteries and family links to each;
  • His family’s visiting intentions;
  • The guardianship dimension and overall connection between the testator and his sisters; and
  • Any competing application by hospital, funeral home or other facility.

Court Rules That Testator Will Be Buried in Edmonton

After reviewing the above factors and the evidence, the court placed considerable weight on the fact that the older sister had been the testator’s guardian for the last years of his life and that she felt very strongly that his resting place should be closer to her for visiting purposes.

Therefore, in the result, the court ordered that the testator would be laid to rest in the chosen cemetery in Edmonton.

Contact DBH Law in Calgary for assistance with Estate Planning, Administration and Litigation 

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