What is the liability of the estate, the personal representative and the surviving spouse for funeral expenses?

The liability of the estate, the personal representative, and the surviving spouse for funeral expenses is not unlimited. That liability is limited to expenses that are reasonable having regard to the deceased’s station in life and the other circumstances. The insolvency of the estate is one significant circumstance that must be kept in mind. It is also relevant whether those concerned knew or ought to have known at the time of the funeral that the estate was insolvent: Stag v. Punter (1744), 3 Atk. 119, 26 E.R. 872. When an estate is insolvent, it is incumbent on all concerned to ensure that funeral expenses are reasonable.

There is no universal answer as to which expenses are reasonable and which are not. The funeral ritual in our society is intricately bound up with cultural and religious beliefs and practices. The law permits the expenditure of estate funds for a decent burial in accordance with the traditions of the deceased so long as extravagant and unreasonable expenses are avoided: Mullick v. Mullick (1829), 1 Knapp 245, 12 E.R. 312 (P.C. (Calcutta)). Where an estate is insolvent, those involved in the burial must limit themselves to the minimum expenses that will accord a dignified interment.

It follows that what is reasonable in one context may not be reasonable in another. The case law on what is “reasonable” is impossible to reconcile if this is not kept in mind. Where an estate is solvent, and funeral arrangements are made by the personal representative, he or she will be able to charge to the estate (as against the beneficiaries) all expenses consistent with the culture, religion and station in life of the deceased, even if some of the expenses might be viewed objectively as “luxuries”. Where the estate is solvent, but the funeral arrangements are made by someone other than the personal representative who now seeks reimbursement from the estate, the same rule will generally apply. However, a person seeking reimbursement must exercise greater restraint because the personal representative (who has the right to inter the body), the beneficiaries or ultimately a court, may disagree on what is fitting for the deceased. Some expenses that would be allowed to a personal representative as against beneficiaries may not be allowed to a third party as against the personal representative. Where the estate is insolvent, and funeral expenses are being asserted against creditors, or against someone with a higher duty to pay (see para. 11, supra), a stricter rule applies. With insolvent estates there is authority that only “necessary” expenses are allowed, although the better view is that the test is still “reasonableness”, but the insolvency becomes a primary factor: Edwards v. Edwards (1834), 2 C & M 612, 615, 149 E.R. 905.