Many questions concerning funeral services have been raised during the pandemic. Here are the answers.

What can the loved ones of the deceased expect if the funeral services that were provided for in a prearranged contract have to be changed as a result of government guidelines related to the COVID-19 pandemic? i

In the funeral services domain, as in many other consumer domains, the current circumstances constitute a case of force majeure. They raise a number of new questions from a legal standpoint.

For example, services provided for in a prearranged funeral services contract may not be delivered or may be replaced with other services as a result of government guidelines in connection with the COVID-19 pandemic.

If you find yourself in such a situation, first make sure that the sanitary measures raised by the funeral home to propose amendments to the prearranged contract have in fact been issued by the public health authorities (webpage in French only). For example, embalming a person who died from COVID-19 is no longer allowed, but a wake or viewing of the body may be permitted, under certain conditions. .

As a general rule, in cases of force majeure, merchants who are unable to deliver the goods or services for which they have been paid must reimburse their customers, unless a valid clause in the contract provides for another arrangement in the event of a force majeure and the customer has agreed to it.

With regard to the reimbursement of paid services that were not received, the merchant and the deceased person’s loved ones should try to come to an agreement.

For example, in the case of a prearranged funeral services contract that provided for the body to be embalmed and for a viewing to be held at the funeral home, the deceased person’s loved ones may claim a reimbursement for that portion of the contract if, at an appropriate time after the person’s death, such services can still not be provided by the funeral home as result of the government order to avoid all gatherings.

If certain paid services can no longer be provided, but they can be replaced with other services, for example setting up a virtual ceremony to replace a ceremony held at a physical location, the loved ones and the funeral home should try to come to an agreement as to the value of the initial service and that of the replacement service in order to adjust the invoice, if applicable.

Can the funeral home charge additional fees because in must take extraordinary sanitary precautions? i

Purchases made after a person’s death

If new sanitary requirements are imposed by the government for a person who died after being infected by COVID-19, the funeral home may be justified in charging a supplement, after first making sure they reach an agreement with the deceased person’s loved ones regarding the price of such a supplement when the contract is entered into. Such a supplement should, however, remain within reasonable limits.

It is important to keep in mind that a description of each item and its price must be included in any contract for funeral services or a sepulture entered into after the death of the beneficiary. Among other things, this requirement lets the purchaser know what he or she is paying for. For more information, refer to the page titled Contents of the Contract.   

Purchases made before a person’s death (prearranged contracts)

Contracts for prearranged funeral services or prepurchased sepultures, which are contracts entered into before the beneficiary’s death, can only be amended with the consent of both parties. The funeral home may therefore not unilaterally impose additional fees as a result of new sanitary requirements without first having discussed the issue with the deceased person’s loved ones.

In order to be valid, any amendments to the contract must be made in writing and signed by both parties. The amended contract must have the same mandatory contents as the initial contract.

Can the funeral home ask the deceased person’s loved ones to cancel the prearranged funeral services contract to then propose a new one, and retain 10% of the cost of the contract? i

The rules that govern prearranged contracts allow merchants to keep up to 10% of the total price of the contract when customers cancel their contracts, under certain circumstances. However, if the pandemic situation forces the parties to review certain elements of the contract, the funeral home should not use this situation as grounds to subtract such a percentage from the reimbursement of the services that cannot ultimately be provided.

What should the loved ones of the deceased do if, in any of the situations described above, it does not appear possible to come to an agreement with the funeral home?i

If there is no agreement, the loved ones could try using a conciliation approach, for example, by turning to the group with which the funeral home is associated, if such is the case.

Either of the parties could also notify the other party that it is contesting its position and that it intends to pursue the case before the courts, without causing any delays in the delivery of the funeral services that are required immediately.

Merchants and consumers who are affected by a force majeure event must nevertheless keep in mind that this is an unprecedented situation, and that it is in their best interest to find a way to come to an agreement. If no agreement is possible, one could expect a court hearing a case stemming from government orders to have a broad margin of discretion under the circumstances.

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