On 4 April 2019 (Thursday) section 65 of the Burial and Cremation (Scotland) Act 2016 comes in to force and with it a new framework for dictating who decides what is to happen to you after you die. So, what does this mean?

Current position

Currently, it many people choose to put provisions in a will regarding their funeral. For example, whether they wish to be buried or cremated and where they would like to be buried or have ashes scattered. While such a clause is not legally binding it does provide direction to 'next-of-kin' and can assist their nearest and dearest at a difficult time. If there is no such clause, the next-of-kin will be left to make the decisions.

What does next-of-kin actually mean though? And is there a ranking system in place? Well, following the tragic case of a soldier killed while on training in Germany and the dispute which arose between his widow and his mother, resulting in his body being held in a morgue in London (he was from Forfar) for three years, the law has been changed.

Incoming legislation

Firstly, if you make a direction in a will and it is reasonably practicable to give effect to it, your wishes will be followed. It is also possible, and may well be recommended, that you state who you would like to deal with the arrangements. If your direction is outlandish and impracticable, or you do not state who should be responsible, the new act will dictate who is to deal by way of a ranking order. For those who are over the age of 16, this is as follows:

  • spouse or civil partner;
  • cohabitant (if living together for a period of at least six months);
  • child (including step-children);
  • parent;
  • sibling;
  • grandparent;
  • grandchild;
  • aunt or uncle;
  • cousin;
  • niece or nephew; or
  • longstanding friend.

If any class contains more than one (i.e. two parents) they will rank equally. There are similar directions for those who were under the age of 16 at the time of their death.

Any potential issues?

It is hoped that the implementation of the new act will prevent there being further disputes between parties in relation to a deceased person. However, if your family unit does not fit the model above, there may well be additional issues.

For example, it may be that the deceased was separated from a spouse and cohabiting with a partner. Unless the spouses had separated by way of an agreement or a court order, it is likely the survivor will rank above the cohabitant, even if this was a long term relationship and the spouses had not been in contact for some time.

However, a person has only to reside with someone else for a period of six months before the death before they rank above a child of the deceased.

As a step-child is included in the definition of child, it is possible that an adult step-child, with whom there is not a close relationship, may make arrangements ahead of a close blood relative.

Additionally, as those in the same class rank equally, it may be that an adult child predeceases his separated or divorced parents. This may also result in a conflict as the parents may have differing views.

A further issue is that the new legislation only applies to the burial and/or cremation. It does not relate to a funeral service. Therefore, there may be conflicting views as to the service and other activities which take place at a funeral, such as a wake.

Finally, it is not clear as to who should police this legislation. Is it for the undertakers or funeral directors to ensure that they are dealing with the correct person? If so, how will relevant parties prove to the funeral directors that they are the highest ranking person?

What's next?

So, what should you do? If you have any specific wishes regarding your send off, you should speak to a specialised lawyer to ensure that your will or any declaration is prepared in accordance with the legislation. You should also seek advice if you have a family dynamic which does not fit within the model provided for in the legislation.

If you would like to discuss any of the issues raised, please get in touch with your usual contact in Brodies' Personal & Family department, or telephone 0131 228 3777 to speak with a member of the team.