Funeral expenses: Why executors should pay them promptly

This article discusses the payment of funeral expenses out of an estate, and why executors should pay them promptly.

The first reason is practical. After death, the funeral home is often the first to provide a service to the estate. It disposes of the body in a safe and respectful manner. As such, the funeral home understandably expects to be paid. To pay this expense promptly will ensure the estate is not later sued for the invoice, and interest charges are not incurred. Moreover, it means there is one less expense for the executors to later deal with.

The second reason to pay promptly, is that the law prioritizes funeral expenses. Almost every will drawn by a lawyer, will include a clause directing the executor “to pay out of and charge to the capital of my general estate my just debts, and funeral and testamentary expenses.”

Thus, the will of a deceased usually expressly requires the estate to pay the funeral expenses. Thus, even in situations where is a dispute over which will is valid, it is very unlikely there will be a dispute over whether it was legitimate to pay funeral expenses. Again, it is simpler to pay those expenses, get them out of the way, and then move on to other issues (like which will is valid etc).

For an example of how the law prioritizes the payment of funeral expenses, we may look to the Alberta decision in Chernichan v. Chernichan Estate, 2001 CarswellAlta 1730, 2001 ABQB 913, [2001] A.J. No. 1429. There, the Court spoke of the “public interest in the prompt and dignified disposal of human remains”, and that the funeral costs should be paid promptly:

14      Where one party pays funeral expenses, he or she is generally able to recover them from any person who has a higher obligation to pay them, even if that person had no input into or even knowledge of the funeral: Schara Tzedeck v. Royal Trust Co. (1952), [1953] 1 S.C.R. 31 (S.C.C.) at p. 37. Funeral arrangements must usually be made in a very short period of time, sometimes before the personal representative is identified, and invariably before probate is issued. The family usually makes the arrangements without regard to who is in a technical sense legally responsible for either making the arrangements or paying the expenses. Because of the public interest in the prompt and dignified disposal of human remains, the law imposes a duty on those ultimately responsible to reimburse the person who actually incurs the obligation. The obligation to reimburse arises in restitution, not in contract, and is founded on considerations of necessity, unjust enrichment and public health: Goff and Jones, The Law of Restitution, (5th ed., 1998), pp. 480-81. Thus the son in Routtu could recover from his father. See also Tkachuk v. Uhryn (1952), 6 W.W.R. (N.S.) 515 (Sask. Dist. Ct.) (daughter entitled to costs of funeral from estate); and Sargent & Son Ltd. v. Buday, [2000] O.J. No. 5476 (Ont. S.C.J.) (estate must reimburse son). The Applicant is therefore prima facie entitled to reimbursement for the reasonable expenses he incurred.

[emphasis added]

Even where an estate is insolvent, funeral expenses have a priority among the debts. Indeed, we find this enshrined in s. 46.2 of the Administration of Estates Act, SS 1998, c A-4.1 which says that reasonable funeral expenses are to be paid in priority to virtually all other debts. The provision reads below:

Ranking of debts

46.2 (1) When the assets of an estate are not sufficient to pay all the debts of an estate, the following debts shall be paid proportionately and without any preference or priority of debts of one rank or nature over those of another:

  1. debts due to the Crown in right of Saskatchewan and to the executor or administrator of the deceased person; and
  2. unsecured debts.

(2) Reasonable funeral, testamentary and administration expenses are to be paid in priority to the claims mentioned in subsection (1).

(3) Nothing in this section prejudices any lien or charge existing during the lifetime of the deceased on any of the deceased’s property

[emphasis added]

We even find that the federal Bankruptcy and Insolvency Act makes clear that funeral expenses have a priority, where an estate has assigned into bankruptcy:

Priority of claims

136. (1) Subject to the rights of secured creditors, the proceeds realized from the property of a bankrupt shall be applied in priority of payment as follows:

(a) in the case of a deceased bankrupt, the reasonable funeral and testamentary expenses incurred by the legal representative or, in the Province of Quebec, the successors or heirs of the deceased bankrupt;

(b) the costs of administration, in the following order,

  1. the expenses and fees of any person acting under a direction made under paragraph 4.03(1)(a),
  2. the expenses and fees of the trustee, and
  3. legal costs;

[emphasis added]

Thus, there is a super-priority for funeral expenses. In the Chernichan decision referenced above, the Court even held that funeral expenses have a priority even over unpaid taxes owing by the estate. Because the executor, in that case, should have paid the funeral expenses before the taxes (and she did not), she was personally liable to pay any unpaid reasonable funeral expenses.

What if the funeral expenses are unreasonable?

Funeral expenses only have a priority to be paid, to the extent that they are reasonable. We see the qualifying word “reasonable” used in both the Administration of Estates Act, and the Bankruptcy and Insolvency Act.

What then is reasonable? There is some prior guidance from courts, suggesting that the cost of the funeral should be sensible, having regard to the deceased’s financial assets, and other circumstances. Thus, if a deceased died with very little in assets, it is reasonable that their funeral should contain only that is necessary. Indeed, the Chernichan decision held that ‘in insolvent estates only the simplest and most modest tombstones can be charged against the creditors.”

If the executor of a small estate insists on a magnificent and expensive service or headstone, the funeral home should obtain appropriate assurances from the executor (i.e. pre-payment, or a contract stating that the executor will be personally liable to pay the cost, if the estate cannot afford it).

What if the estate bank accounts are frozen?

Some delays in payment are frustrating but legitimate.

In many, even before probate is obtained, a bank will release monies from an account to pay the funeral costs. If an executor says that the bank will not release money to pay the funeral cost, the funeral home should ask the executor to find out why this is.

What about the case of a disputed will, where someone says Will A is valid, and someone argues Will B is valid? In such a case, the bank may be reluctant to deal with any executor until the one true will is determined in a court proceeding (and thus, once this is determined, it will also determine who is the true executor)

Should a will challenge be a good reason to hold up payment of funeral costs? From a common sense perspective, the two conflicting sides should ideally come to a negotiated agreement on the issue of funeral costs. That is, they may agree to immediately pay the funeral costs out of a bank account, on the basis that, regardless of which will is later found to govern, there is no reason the funeral expenses could not be paid in the interim. Of course, the above outcome requires the reasonableness of the two sides, which is never guaranteed in litigation.

What can funeral homes do to ensure they get paid?

If the circumstances of the deceased are complex (i.e. no local family to act as “decision maker” or pursue probate) the only way to guarantee payment is to ask for payment up front, before  providing services. One situation which occurs is there the funeral home does the work, but is left holding its unpaid invoice when no family member will take the effort to take steps to administer the estate etc. If the funeral home has evidence before the funeral that this may occur, the funeral home may wish to ask for money upfront.

Second, a funeral home should always make sure that it is obtaining instructions from the true representative of the estate. This is already required in the Funeral and Cremation Services Act, which requires a funeral home to obtain written authorization from the authorized decision-maker, before providing services (see s. 92). This due diligence should ensure that a funeral home does not do a lot of work at the request of person A, only to find out that person B was the true executor.

If a funeral home has tried all reasonable attempts to secure payment of an overdue invoice, they may need to simply sue the estate. If the bill is for less than $30,000, which most will be, you can sue in Small Claims court. However, note that in Small Claims court you cannot recover any legal fees, if you use a lawyer. Also note that, due to limitation periods, you must sue within 2 years of the non-payment. Indeed, when suing estates, the sooner you sue the better, to ensure that estate assets are not distributed out of your reach.

Sometimes the question arises – can a funeral home sue the executor personally, as well as the estate, for unpaid expenses? The executor’s personal money, is separate from the estate’s money. The most reliable way to ensure you can sue an executor personally, is to ensure the executor signs a contract in advance, stating that they are personally liable (in addition to the estate) to pay the funeral home. Not all executors may be willing to sign such a clause however, so you should clarify this before the funeral.   

That said, if an estate legitimately incurs a debt to a funeral home, and then later the executor distributes all the assets of the estate before paying the funeral home, that executor may become personally liable. Each situation is unique, and it is recommend to consult a lawyer for specific situations.

Contacting a Lawyer on this Subject

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

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Saskatchewan Estate Litigation Update: Nicklen Estate, 2021 SKQB 208

The recent Saskatchewan decision in Nicklen Estate offers a reminder of the importance of making changes to your will while you still can. If you draft “notes to self” but postpone actual changes to your will, it may be too late.


A will was executed by the deceased, Albert Edward Nicklen [Edward], on February 5, 2013. The Will was prepared by a lawyer, and the Will was valid.

However, there was also another, later document – a NAPA Auto Parts receipt. On the back of this receipt, Edward made some handwritten notes with respect to certain property.

The receipt states as follows:

I gave William Nicklen N.E. 1 52 15 W2 and give Ab Letkeman and Bev Seykora each $20,000 at little each year.

Sold CAT to Rodge the person I sold 830 John Deere to same person cash paid for $15,000 made the CAT. CAT not paid.

And gave my ½ share.

All on my will.

Albert Edward Nicklen:


The changes embodied by this receipt, if found valid by a Court, would impact the distribution of the Estate.

The executor named in the Will, Jeannette Wickstrom, gave evidence that on February 6, 2020, just ten days before Edward’s death, Edward showed her the receipt. At the bottom of the receipt, Jeannette wrote:

I Jeanette Wickstrom acknowledge that Albert Edward Nicklen showed me the changes that he wished to make to his Will on Feb 6, 2020. These changes are written on the back of this Napa receipt dated August 14 2019 in his own handwriting.

Although the Document contains Edward’s full name, it was printed but was not signed by him in cursive writing.

The issue was whether this was a valid codicil. Certain of the beneficiaries believed the handwritten document was a “codicil”, to be read hand‑in‑hand with the Will.

The other beneficiaries believed the NAPA receipt contained mere notes that were jotted down by Edward on a scrap piece of paper, as a reminder to himself of changes he wanted to make to his Will. But, they argued, Edward had crucially failed to make these changes before he died on February 16, 2020. Thus, the notes on the receipt were not testamentary in nature.

The Issue

The issue was whether the NAPA receipt was a valid testamentary document, and should be probated in conjunction with Edward’s Will? 

Was this receipt testamentary in nature?

The court ultimately held that the receipt was not testamentary in nature.

The Court first explained that the document did meet the prerequisites to be considered a holograph will pursuant to s. 8 of the Act. This was because the notes on the receipt were in the handwriting of Edward. The Court held that even printed (not cursive) signatures could be held to be a “signature”.

However, a review of all circumstances suggested to the Court, that the receipt was not a final expression of Edward’s testamentary intentions. The Court observed that a document must contain more than a fleeting expression of how the individual wishes his or her property to be disposed of after death. The document must represent a fixed and final expression of intention in relation to the disposition of property.

Here, the Court held that the receipt was not a fixed and final expression of intention in relation to Edward’s disposition of property.

  1. Edward had previously always used professionals to handle his affairs – lawyers for his legal matters and accountants for his income taxes. It was out of character for him to make handwritten notes on receipt. The fact that Edward had attempted to contact a lawyer in relation to changes to his Will very shortly before he died, suggested that he wished to change his Will but did not ultimately do so before he died;
  2. Second, Edward would usually sign a document in cursive writing and would not just print his name. It was also unusual for him to write on a scrap of paper. Rather, Edward liked to write on lined paper and always had a pad of lined paper with him. These facts suggested the receipt contained mere notes to draft, not a true intention to make a codicil;
  3. Jeanette’s note, written on the receipt, refers to the receipt as “changes that [Edward] wished to make to his Will”. This statement was prospective in nature. It speaks of a future intention. Thus, Edward had not yet made such final changes;
  4. Further,  Edward’s notations are unclear. He indicated in the receipt that he “gave” NE 01 to William, which speaks to the past. But then he also indicated that he “give[s]” $20,000 a little each year to Abe and Beverly, which speaks to the future. He referred to a piece of equipment that he had already sold but noted on the receipt that he was still owed money for that piece of equipment. The Court held the receipt was both prospective and retrospective and did not reflect a fixed testamentary intention.

As such, the Court allowed probate for the Will alone to proceed, but not for the receipt:

[58]  At the end of the day, based upon my review of the Document and the extrinsic evidence presented to me, they have not satisfied that burden. I have concluded that Edward’s notes on the Document represented changes he intended to make but he died before his intention came to fruition. At best, the Document was a “note to self” prepared by Edward.


If someone wishes to make a change to their will, they should move as quickly as possible to see a lawyer, and make formal changes. To do otherwise, and simply rely on handwritten notes, gives rise to two problems. First, even if the Court finds the notes testamentary in nature, the informal nature of the notes will likely give rise to expensive litigation, which diminishes and delays the Estate. Second, there is also the even worse possibility, that the Court will find the notes are not truly testamentary. In such cases, the notes (and any intentions expressed on them) will be ignored.

Contacting a Lawyer on this Subject

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

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