An estate trustee has the legal authority to arrange the place and manner of the burial or cremation of the deceased. The estate trustee also has a duty to see that the deceased is buried in a suitable manner and that no undue expense is incurred. Where a person dies without a will, and an administrator has not yet been appointed by the court, the deceased’s next of kin may direct the manner of burial or cremation. In some cases, the deceased may have made arrangements for a funeral and pre-paid for their own burial or cremation. There are certain statutory and common law consumer protections in regard to the procurement of funeral services.
Burial and cremation services are governed by the Funeral, Burial and Cremation Services Act, 2002. Pursuant to s.42(1), a purchaser of internment rights, defined in s. 1 as “the right to require or direct the interment of human remains in a lot”, may cancel the contract at any time within 30 days after the contract was made. The operator must fully refund all money received upon notice of cancellation. A cemetery operator will be unable to enforce a contract unless it meets the formal requirements set out in the regulations.
Contract law also provides certain protections to those purchasing funeral or burial services. In the recent case of Tsekhman v Spero, the Court held that contracts for funeral and interment services are contracts for “peace of mind”. A breach of contract, therefore, can result in damages for mental suffering. In this case, the Court found that a delay in fulfilling the contract for burial prejudiced the Plaintiffs’ ability to abide by their Jewish laws and customs and to honour their parents’ wishes. The court held damages for loss of peace of mind in a contract case such as this one should be modest.
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