Death can be considered a taboo subject - many of us don’t want to think about what is to happen on our death. However, the importance of discussing your funeral instructions and wishes with your loved ones cannot be overstated.

Some opt to include funeral instructions in their will. These instructions can be as simple as indicating whether you would like to be buried or cremated. Others often comment that they don’t need to provide for funeral instructions as “their family will know what they want”.

What will happen if no instructions are left?

In some cases, a lack of instructions in relation to funeral instructions and/or who is to implement those instructions, can cause disagreements between family members at an already difficult time.

The Burial and Cremation (Scotland) Act 2016 (“the 2016 Act”)

The 2016 Act was enacted to attempt to modernise the law. Prior to 2016, there was no statutory guidance to regulate what was to happen in the event of a dispute between family members over funeral instructions. The issue had to be dealt with at common law (which involved raising a court action if agreement could not be reached). In cases pre-2016, there have been instances of a funeral being postponed for a prolonged period to allow the court to decide what the funeral arrangements should be, and which family member (or members) should implement those arrangements.

Main points to note from the 2016 Act:

The Act provides default provisions as to who is to make the necessary funeral arrangements in the event an “arrangement on death declaration” has not been made by the deceased.

What is an Arrangements on Death Declaration?

This is a declaration (either oral or in writing) by an adult confirming who should be responsible for implementing their funeral instructions. Anyone can be appointed to take charge of the funeral arrangements; it does not need to be a family member or an executor. If those wishes are recorded by the deceased in a will or a letter of wishes for instance, then they are given effect. For the arrangement on death declaration to take effect, it must state both what the instructions are and who should implement them.

What will happen when no instructions are left?

If an adult dies without leaving any indication of their wishes, or their wishes cannot be reasonably implemented, the 'nearest relative' will be entitled to make the arrangements. The Act provides the following hierarchy for defining "nearest relative": (1) Spouse or civil partner; (2) Cohabitant; (3) Child (including step-children); (4) parents; (5) siblings; (6) grandparents; (7) grandchild; (8) uncle or aunt; (9) cousins; (10) niece or nephew; and lastly (11) longstanding friend.

Whilst the Act will not prevent disputes arising in relation to arranging a funeral, it does provide much needed clarity as to who should make the funeral arrangements, in the absence of instructions to the contrary. If there is more than one person in a group (e.g. children) then they should make decisions collectively. If they cannot agree, then a claim can be brought before a sheriff. It is worth noting that if the highest ranking relative does not want to act, the responsibility will pass to the next person and so on.

It is, therefore, important that you make your wishes known to family members or friends in order that they can attend to implementing these. Although many people do not like picturing what they want their funeral to look like, it can greatly assist those left behind who need to make the necessary arrangements.

Potential pitfall of the Act

The Act does not take in to account more modern families. Issues could arise in the absence of a death declaration if an adult was married (but not yet divorced). This may leave a new co-habiting partner or children (possibly from a relationship other than the marriage) out in the cold when it comes to arranging the funeral if the surviving spouse does not decline to assume responsibility for the funeral.

Conclusion

To ensure that your wishes are complied with on your death, you should make a will and include an arrangement on death declaration in that will. You should review your will regularly and ensure that your funeral wishes are updated, should you change your mind as to what you want.

If you require any advice regarding drafting a will, making a death declaration or any other private client matter, please contact our personal and family team.

Contributor

Amy Boyce

Solicitor