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Grave Concerns

Grave Concerns

Making arrangements for your funeral after your death can be a trying and emotional matter for your loved ones, even more so when there are disagreements as to what should happen. There have been numerous family disputes in this area and many individuals assume they can avoid such disputes, at what they know will be a difficult time, by providing clear instructions in their Wills as to what they want to happen. However, such instructions are only expressions of wish and therefore are non-binding. Moreover, disputes can also arise where the wish can no longer be followed, for example, when the church or crematorium no longer exists.

The Burial and Cremation (Scotland) Act 2016 provides some clarity by detailing who has the final say in relation to funeral arrangements. Surprising to some, this is not the executor appointed under your Will, but instead your closest relative. The Act provides an order of priority as to who can decide, beginning with your spouse or civil partner, cohabitant, adult children (including step-children), parents and then siblings (including half-siblings). Your relative must have regard for any wishes you expressed and your religious beliefs.

However, disputes can still arise where the individuals in each priority class cannot agree, particularly when the deceased has not provided any funeral wishes. So the Act also delivers a workaround for such a situation by providing that an “arrangement on death declaration” in a Will takes priority over the closest relative. Such a declaration must clearly specify who you wish to make decisions about your funeral. Including such a clause in your Will ensures that you avoid any family disputes in the future during such a difficult period.

The Act also includes provisions about burial plots – if individuals have a specific plot that they wish to be buried in, they must ensure that they apply to renew their ‘right’ to be buried in the plot after 25 years. This extension will then last a further 10 years. In the past, the right to be buried in a specific plot was indefinite but this has meant that many plots have remained empty when the individual has been buried elsewhere. A separate application is also be required if you wish for a headstone to be erected on their plot.

There have been a number of scandals in recent years regarding the disposal of ashes, the most publicised being the ‘baby ashes scandal’ where families were told that no ashes were left when young babies were cremated. The Act addresses these controversies by providing a legal definition of ashes and specifying that crematoriums and funeral directors must make reasonable efforts to contact the person who registered the deceased for cremation when the ashes have not been collected. This has happened in the past where there is confusion as to who have collected the ashes or where no one knows what should happen with them.

Although the majority of the Act is not yet in force, the government will begin work on the implementation of the sections detailed above in the next six months. Therefore, it is important that individuals now take proactive steps in light of these upcoming changes, including providing “arrangement of death declarations” in their Wills. If you have any questions in relation to the Act or require assistance in updating your Will, please contact any member of our Private Capital team.

Amanda Davy
Senior Solicitor

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