She wanted to be buried with her late husband. More than a year later, her family still doesn't have her ashes

Phyllis Malcolm died on January 31, 2020.

In her will, she wrote that she wished to have her remains buried on Salt Spring Island alongside those of her husband of 68 years.

But her son, John Malcolm hasn't been able to fulfill her wish because the executor of Phyllis's will still has her remains and has cut off all communication with the family.

The executor is Victoria-based lawyer R.C. 'Tino' Di Bella. He had also been appointed as Phyllis's power of attorney before her death.

"I don't feel right about Mom being in a vault on Fort Street [in Victoria,]" said Malcolm.

"It's the last thing he has to do in his job as executor, just put her to rest. And I'm completely frustrated because I don't know why [he won't]."

Malcolm has asked for the ashes for more than a year

When Phyllis died, COVID-19 was just starting to make its way to B.C. Unsure of how the pandemic would evolve, Malcolm says he asked Di Bella to hold on to the ashes at first while they weathered the storm.

But about three weeks later, once it became clear the pandemic wasn't going away, Malcolm decided it was time to bury his mother with her husband.

"As soon as I started asking for the ashes, he has not given me a reply. It's been over a year now and I have not had a single reply from him," said Malcolm.

Di Bella had always been slow to respond, claims Malcolm, but after months went by with unanswered calls and ignored e-mails and texts, he filed a complaint against the lawyer with the Law Society of B.C.

But, the society has had a difficult time completing its investigation.

"Mr. Di Bella failed to respond to our inquiries, resulting in the Law Society issuing a citation that has not yet been scheduled for a hearing by the tribunal," said the society in a statement.

It's not the first time Di Bella has been investigated by the Law Society of B.C.

It has reviewed Di Bella's practice multiple times after numerous complaints about a lack of timely communication, among other things. In 2019, Di Bella admitted to committing professional misconduct.

In the decision, the hearing panel found that Di Bella failed "to provide the quality of service expected of a lawyer."

Delay blamed on COVID-19

Di Bella didn't return any calls to CBC News, but, in an email, he said the pandemic has complicated the executor process.

"My sincere wish is that the COVID-19 restrictions regarding social gatherings end, and allow all families, like Mrs. Malcolm's, to gather from near and afar to celebrate her life and honour her final wishes," he wrote.

But when asked why the pandemic restricted Di Bella from either burying Phyllis's remains — as requested — or allowing her family to bury them, he never responded.

Often, when a person dies in B.C. they name someone as an executor — like Di Bella, in this case — and, typically, the executor must then apply to the court for a grant of probate. It is often the first step an executor takes to begin their duties.

A search of the province's online court services website shows that there are currently no probate files for Phyllis Malcolm. 

The entire year-long process has left Malcolm emotionally exhausted, he said.

"There's no closure. I've got five daughters and a son. All of them love their grandmother and none of them have been able to say goodbye properly," said Malcolm.

As executor, Di Bella is legally responsible for the ashes. And Malcolm feels as though he is without options except to hire an estate litigator, an expensive and potentially lengthy process.