OAK BAY, N.B. -- A New Brunswick family says they can't bury their loved one who passed away earlier this year, because someone else is already buried in their family plot.

Kimberly Stewart says her parents made a plan in 2004 to have a family burial plot that would sit next to her half-brother's burial plot inside Oak Bay Rural Cemetery.

The family has a deed and receipt from Nov. 8, 2004 for Merle and Florena Stewart, showing the purchase of four plots in 'Section W' of the cemetery for $450.

Merle Stewart died on Jan. 9.

The family says they were preparing for his burial when they received a call from an official at the Oak Bay Rural Cemetery.

"We were contacted about a week ago as the cemetery opened up and informed that our family plot was sold to somebody else and somebody else is buried there," says Kimberly.

The family says the cemetery official called back a few days later.

"She said the person they have buried there, they're not digging up, that she could offer us another plot, but as far as she was concerned there was nothing else the board could do," says Kimberly.

"So now we have a lawyer to try and get this straightened out."

CTV did speak to a representative of the Oak Bay Cemetery on Tuesday who didn't wish to make any comment.

The Stewart family is hoping for their original burial plot plan to be followed through, acknowledging how the situation is difficult for two different families.

Lorena Stewart, Merle's daughter, says the confusion is adding more grief during an already difficult time.

"He's still in a vault," she says. "He should be in a resting place."