Where There Is a Will

The obligation to deal with a deceased’s remains falls squarely on the estate trustee.[1]  In cases where the deceased has a Will that names an estate trustee and that estate trustee accepts the responsibility, he/she is then charged with disposing of the remains of the deceased person.

On an Intestacy or Where No Estate Trustee Willing to Act

In cases of intestacy, or where the named estate trustee declines to act, the Court may appoint an estate trustee pursuant to section 29 of the Estates Act.[2] 

Section 29 of the Estates Act lists the parties who may be named as estate trustee where a deceased person dies without a Will, or where the estate trustee named in a Will refuses to act:

29. (1) Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,

(a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;

(b) the next of kin of the deceased; or

(c) the person mentioned in clause (a) and the next of kin, as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit.

Appointment at request of parties interested

(2) Subject to subsection (3), where a person dies wholly intestate as to his or her property, or leaving a will affecting property but without having appointed an executor thereof, or an executor willing and competent to take probate and the persons entitled to administration, or a majority of such of them as are resident in Ontario, request that another person be appointed to be the administrator of the property of the deceased, or of any part of it, the right that such persons possessed to have administration granted to them in respect of it belongs to such person.

General power as to appointment of administrator under special circumstances

(3) Where a person dies wholly intestate as to his or her property, or leaving a will affecting property but without having appointed an executor thereof willing and competent to take probate, or where the executor was at the time of the death of such person resident out of Ontario, and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the property of the deceased, or of any part of such property, other than the person who if this subsection had not been enacted would have been entitled to the grant of administration, it is not obligatory upon the court to grant administration to the person who if this subsection had not been enacted would have been entitled to a grant thereof, but the court may appoint such person as it thinks fit upon his or her giving such security as it may direct, and every such administration may be limited as it thinks fit.

Subsection 29(4) of the Estates Act provides that a Trust Company “may be appointed as administrator under subsection (2) or (3), either alone or jointly with another person.”

The legislation does not set out a priority or hierarchy as to who is to be appointed estate trustee by a Court.  In Lajhner v. Banoub, Justice Gunsolos wrote:

18. Section 29(1) of the Estates Act does not provide spouses, or those living in a conjugal relationship with the deceased at the time of death, priority to the appointment over the next of kin. Such a priority scheme would fetter or be a constraint upon the court’s role and would detract from the court’s parens patriae jurisdiction.  Subsection 29(3) clearly indicates that the court has the ultimate discretion to appoint the administrator when a person dies intestate.[3]

The Court is afforded wide discretion to appoint an estate trustee pursuant to section 29 of the Estates Act and is not bound to name a spouse in priority of next of kin.

A person (or persons or Trust Corporation) named as estate trustee pursuant to section 29 of the Estates Act bears the responsibility of dealing with the deceased’s remains.

Intestacy and No Spouse or Next of Kin

If a person dies without a Will, and/or there is no person who can be appointed pursuant to section 29 of the Estates Act, then the Court may, pursuant to the Crown Administration of Estates Act[4] appoint the Public Guardian and Trustee to act as Estate Trustee.[5]

PGT may administer certain estates

1. (1) The Superior Court of Justice may, on the Public Guardian and Trustee’s application, grant to the Public Guardian and Trustee letters of administration or letters probate with respect to a person’s estate, if the following conditions are satisfied:

1. The person dies in Ontario, or is a resident of Ontario but dies elsewhere.

2. The person dies intestate as to some or all of his or her property, or dies leaving a will without naming an executor or estate trustee who is willing and able to administer the estate.

3. There are no known next of kin who are residents of Ontario and are willing and able to administer the estate, or the only known next of kin are minors and there is no other near relative who is a resident of Ontario and is willing and able to administer the estate or to nominate another person to do so.

As the entity authorized to act as estate trustee, the Public Guardian and Trustee (the “PGT”) would bear the responsibility of disposing of the deceased’s remains.  Section 3 of the Crown Administration of Estates Act provides that the Public Guardian and Trustee may make arrangements for the deceased’s funeral even before being appointed estate trustee by the Court:

Power to safeguard estate, etc.

1. 2. (1) While the Public Guardian and Trustee is conducting an investigation to determine whether the conditions set out in subsection 1 (1) are satisfied, and until letters of administration or letters probate are granted, the Public Guardian and Trustee may,

(a) arrange the person’s funeral;

(b) make an inventory of, take possession of, safeguard and dispose of the person’s property; and

(c) exercise all the powers of a personal representative with respect to the person’s property.

According to the PGT’s website, the Office of the PGT will administer an estate if:

• the deceased was an Ontario resident orowned real estate here; and
• the deceased did not make a Will orthe deceased did make a Will but the executor has since died or become incapable; and
• there are no known next-of-kin living in Ontario orthe next-of-kin are minors or mentally incapable adults; and
• the estate is valued at a minimum of $10,000.00 after payment of the funeral and all debts owing by the estate.[6]

The PGT is the “estate trustee of last resort.” The Office of the PGT (OPGT) actively tries to locate appropriate people to serve as estate trustees and encourage them to seek appointment.

With respect to burial and funeral arrangements, PGT states that:

The OPGT can sometimes arrange the funeral and burial. The OPGT must first determine whether or not it is the appropriate party to be administering the estate and whether the estate is solvent. It is not always possible to determine this by the time the funeral and burial must take place.

Municipal Social Services will arrange a funeral if a person dies without the money to cover the cost. There is also a special fund to pay for the funerals of deceased veterans and military personnel – The Last Post Fund – which may be approached. As a last resort, the Coroner’s Office is responsible. It has the legal duty to arrange the burial of deceased persons when no one else is available to do so.[7]

In Ontario, when the regional supervising coroner is satisfied that due diligence has occurred and no one has been found to take on the duty to bury, they sign a “warrant to bury” and the municipality where the person died is then responsible for burying the person. The province gives the municipality money for the funeral and burial – sometimes from the estate of the deceased – and the city finds a local funeral home willing to take care of the body.

Estate Trustee During Litigation

While there is litigation involving the validity of a Will and the estate trustee’s authority under challenge, an Estate Trustee During Litigation may be appointed, for the duration of the litigation. In this case, it is the obligation of the Estate Trustee During Litigation to make the burial arrangements of the deceased’s remains. An Estate Trustee During Litigation in this circumstance would have the authority of an estate trustee in respect of dealing with the remains.

In the 2010 case of Buswa v. Canzoneri,[8] the deceased had died prematurely, at age 42, without a Will.  The deceased did not have a spouse but was survived by seven siblings, an adult daughter and minor son. The Court heard a motion in which siblings of the deceased and the daughter of the deceased separately sought appointment as Estate Trustee(s) During Litigation.

The main issue in dispute was the treatment of the deceased’s remains.  The deceased’s siblings wanted his remains to be buried in accordance with Anishinabek tradition since he had been a member of the Whitefish River First Nation.  The deceased’s daughter disagreed and claimed that the deceased wanted to be cremated.  The siblings of the deceased disputed the daughter’s relationship with the deceased.  The deceased’s name was not on her birth certificate, and she only met him two years before the deceased passed away.  The daughter produced evidence of her relationship with the deceased, which Justice Stinson found satisfied, on a balance of probabilities that she was the natural daughter of the deceased.

Justice Stinson applied section 29 of the Estates Act to determine the appointment of an administrator.  As the deceased did not have a spouse, only subsection 29(1)(b) which allows the appointment of “next of kin” applied.  Justice Stinson reviewed definitions of “next of kin” and determined that the deceased’s daughter was more closely related to the deceased, and therefore entitled her in priority to appointment.  As the parties only sought the appointment of an Estate Trustee During Litigation, the deceased’s daughter was appointed in that capacity.[9]

In her role as Estate Trustee During Litigation, the deceased’s daughter was authorized as personal representative to dispose of the remains of the deceased in a dignified manner.[10]  Her authority is identical to that of an estate trustee otherwise named or appointed.

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[1]Williams, supra note 14. While this paper attempts to use the term estate trustee, many of the relevant cases use the terms “executor” or “administrator” and therefore, sometimes those terms are also used

[2] RSO 1990, c E 21 (Estates Act)

[3] Lajhner at para 18

[4] RSO 1990, c. C.47 [Crown Administration of Estates Act]

[5] Section 1, Crown Administration of Estates Act, R.S.O. 1990, Chapter C.47

[6] Ministry of the Attorney General, Estate Administration: The Role of the Public Guardian and Trustee at: https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/estatesadmin.html

[7] Ibid

[8] 2010 CarswellOnt 9888, 2010 ONSC 7137, 65 ETR (3d) 312 (“Buswa”)

[9] Buswa at para 23

[10] Buswa at para 24

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.