In Vinepal Estate (Re), 2018 BCSC 806, the petitioner applied for control of the remains of the deceased. She relied on subsection 5(1) of the Cremation, Interment and Funeral Services Act, S.B.C. 2004, c. 25. This act provides for an order of priority of those persons who may apply for sole control over the disposition of the remains of a deceased person. The father of the deceased argued that the deceased was not in a common-law relationship with the petitioner. The deceased’s mother supported the petitioner and their relationship. The issue on this application is whether the petitioner was the spouse of the deceased. The petitioner and the deceased were not married, but the petitioner submits she and the deceased had been in a “marriage-like relationship” for at least two years before the deceased’s death, which would mean the petitioner was the spouse of the deceased as defined in the Act. Some of the factors to be considered are whether the parties lived together, if they were in a monogamous relationship, if they both contributed to household maintenance, and their financial arrangement. In this case, the court was persuaded that the deceased and the petitioner had a marriage-like relationship for at least two years immediately prior to the deceased’s death, and thus she would have control of the remains.
Unfortunately, the deceased in this case died suddenly at a very young age, and had not turned his mind to drafting a Will. Had the deceased consulted with an estate planning lawyer prior to his death, he could have articulated his wishes in his Will to avoid the unnecessary stress and drama caused to his loved ones. In this case, an estate litigation lawyer would be able to help interpret the law to determine the rightful owner of the remains and can help articulate this right in court. An estate lawyer can also help explain complex definitions in legislation such as the determination of who may be considered a “spouse” when a marriage has not occurred.
Hammerberg’s Estate Dispute Resolution and Litigation team can advise you of the laws pertaining to your dispute and your legal options.