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Who pays the Funeral Account
Who is liable

Questions sometimes arise about the responsibility for payment of a funeral account. The executor may be close to the deceased, and frankly not ready to face up to the challenge of arranging the funeral. Sometimes others who have played a part in the life of the deceased, but appear excluded because they are not appointed executor, can take a proper part by arranging the funeral.

Simple things first . . .

Whoever asks the funeral director to make the arrangements will be the person he considers responsible for the account. He will no doubt also make this clear. It is not the estate itself which makes the arrangements, but an individual. This is a simple question of who makes a contract.

Second. Whoever makes the funeral arrangements, the law sees it as a proper expense of the estate to discharge the liability taken on above. The executor can agree to pay the account in due course without fearing any complaint.

Third. The will may itself require the executor to discharge the account ( ... 'pay my testamentary expenses' ...)

In the absence of a formal contract with some third party, there is an impled contract between the estate and the funeral director, so as to make an executor in a solvent estate personally liable. In former times, the husband of a deceased wife was liable at common law for his wife's funeral account. The funeral expenses are a first charge on the estate in any event.

This can mean that in the absence of anyobody else taking out a grant, the funeral director may himself apply to court, although he is not himself directly a creditor of the estate. Once has taken out the grant, he has control of the assets and can pay his funeral account (and now other expenses) from the estate.

See also Supreme Court Act 1981 s 166, which gives a discretion to the court to pass over persons with a prior right to a grant of letters of administration in special circumstances and if it considers it necessary and expedient to do so.

See Also Tugwell v Heyman (1812) 3 Camp 98; Rogers v Price (1829) 3 Y & J 28; Ambrose v Kerrison (1851) 10 CB 776

Administration of Estates Act 1925 33(2) 34(3).

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18 October 2013 487 18 October 2013