Popp v. Popp

Popp v. Popp

Under s.59 the court must balance rights of all interested persons and may order disinterment where spouse's asserted control is exercised capriciously; respondent's stated indefinite intention to remove the urn and lack of a plan constituted capricious conduct and created uncertainty, so the court ordered disinterment and inurnment in the columbarium to provide certainty while protecting rights of next of kin by requiring notice before any future action by respondent.

Citation
2001 BCSC 183
Parties
Petitioner (sister of Deceased): Debora DeLyzer; Respondent (spouse/executor): Frederick William Michael Popp; Deceased/estate: Estate of Linda Darlene Popp
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
30 January 2001
Procedural Posture
Petition Under the Cemetery and Funeral Services Act for Disinterment and Inurnment / Decision on Petition (reasons for Judgment, in Chambers)
Outcome
Application granted in part: court ordered disinterment and inurnment in Hillside Cemetery columbarium; reserved costs and directed notice requirement for any future action by spouse.
Legal Topics
Disinterment, Right to Control Disposition of Human Remains, Statutory Interpretation, Standing and Priority Among Next of Kin
Source Language
English
Estates Cemetery and Funeral Services Law Probate Civil Procedure Disinterment Right to Control Disposition of Human Remains Statutory Interpretation Standing and Priority Among Next of Kin

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Parties

Debora DeLyzer

Petitioner (sister of Deceased)

Frederick William Michael Popp

Respondent (spouse/executor)

Estate of Linda Darlene Popp

Deceased/estate

Procedural Posture

Petition Under the Cemetery and Funeral Services Act for Disinterment and Inurnment / Decision on Petition (reasons for Judgment, in Chambers)

Legal Issues

  1. 1 Whether court should order disinterment and inurnment under s.59 of the Cemetery and Funeral Services Act
  2. 2 Whether the spouse/executor's asserted control under s.51 should prevail despite conduct characterized as capricious
  3. 3 Whether the deceased's informal statements and lack of written directions bind the decision (s.53)

Ratio Decidendi

Under s.59 the court must balance rights of all interested persons and may order disinterment where spouse's asserted control is exercised capriciously; respondent's stated indefinite intention to remove the urn and lack of a plan constituted capricious conduct and created uncertainty, so the court ordered disinterment and inurnment in the columbarium to provide certainty while protecting rights of next of kin by requiring notice before any future action by respondent.

Court Disposition

Application granted in part: court ordered disinterment and inurnment in Hillside Cemetery columbarium; reserved costs and directed notice requirement for any future action by spouse.

Orders

  • Remains of Linda Darlene Popp to be disintered and inurned in the columbarium at Hillside Cemetery, Kamloops, British Columbia.
  • Respondent shall give notice to the next of kin defined in s.59 of the Cemetery and Funeral Services Act before taking any steps to implement any future decision regarding disposition of the remains so that further application to the court may be made if appropriate.