Residential property
09 May 2019 News

Legislation, arranging a funeral and family law

Expert lawyer in our Perth office, Lindsay Bryce MacKay works in our private client team advising on tax and succession planning for individuals, families and trusts.  She has set out advice on drafting Wills and outlined legislation around burial and cremation:

A properly drafted Will serves many important purposes, one of which is to provide an opportunity to detail your wishes when it comes to funeral arrangements.

Coping with the death of a loved one is incredibly hard and arranging a funeral can often be overwhelming; this is only intensified if the family disagree on the appropriate arrangements.  

Previously, the law on who has the final say on such arrangements was unclear and where there was a disagreement in the family, it often resulted in drawn out court battles, inevitably prolonging the heartache for all of the family.

New legislation came into force last month which determines which family members will have the final say when it comes to arranging a funeral in the absence of express directions from the deceased.

The Burial and Cremation (Scotland) Act 2016 makes clear that, where the deceased has made ‘arrangements on death declaration’, setting out who is to make the final decision on funeral arrangements, that person will take priority, regardless of their relationship to the deceased.

It is open to you to leave as detailed instructions as you wish on the arrangements themselves. Examples might include whether you prefer burial or cremation, where your ashes should be scattered, the sort of service you wish and the readings and songs that will be played. Having guidance like this will help the chosen family member to ensure your last wishes are respected. A Will is a very useful place to include a declaration and details of your wishes, but a separate written note will be equally valid so far as funeral arrangements are concerned.

Section 65 of the 2016 Act sets out, in order of priority, which nearest relative has the right to make arrangements for burial or cremation in the absence of any express declaration. The order of priority will be:

  • Spouse/civil partner (unless separated)
  • Cohabitant
  • Adult Child (including stepchild)
  • Parent
  • Brother/Sister (including half-siblings)
  • Grandparent
  • Grandchild
  • Uncle/Aunt
  • Cousin
  • Niece/Nephew
  • Friend of long standing

In doing so, the person must have regard to any wishes that you expressed on burial or cremation as well as your religious beliefs.

Whilst the new legislation brings welcome clarity to this area, and will hopefully reduce the number of cases reaching the Courts, disputes will no doubt still arise, for example where children disagree amongst themselves as to what mum or dad would have wanted. Such disputes can lead to long term damage to the relationships of those left behind. The best way to avoid this is to make it clear, in writing, who should be making the final decisions and to communicate with your family in advance so that everyone is aware of your wishes.

Considering funeral arrangements is only one of many reasons why having a Will is so important.

Lindsay Bryce MacKay is a senior lawyer in our Perth office and advises many individuals, families and estates on private client issues.  Our private client team also includes lawyers in our offices in Glasgow and Edinburgh who are available for advice.  Our contact page is a good place to start.

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