5th July 2021

Funeral Arrangements: 5 points to be mindful of

  1. The importance of funeral instructions

Whilst not the cheeriest of topics, the importance of having a conversation with loved ones about your funeral instructions cannot be underestimated. 

Some of our clients include funeral wishes within their Will.  This could be as simple as expressing their wish for either burial or cremation.  Others prefer to leave this to family or friends with whom they have had such discussions, or they may even store a separate note with their personal papers or Will.  They may have arranged a pre-paid funeral plan, or have completed the necessary paperwork to bequeath their remains for medical research purposes. 

2. What can happen when there are no funeral instructions?

In some cases, a lack of instructions in relation to someone’s funeral wishes and, indeed, who is to carry out those wishes, can lead to tension at a time when emotions are already running high. The situation may arise where someone, for example, left no funeral instructions in their Will or elsewhere.  They perhaps did not leave a Will at all, or simply did not get around to having “that” conversation with family or friends assuming instead that they would “just know” what would have been wanted.  

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

The 2016 Act intended to modernise the previous law which had become increasingly outdated in failing to offer guidance in situations where there was a likelihood of conflict arising in the absence of any specific funeral instructions being left.  Unfortunately, there have been cases where the deceased person has not been able to be buried (or cremated) for a prolonged period whilst family members dispute what the funeral arrangements should be, and, indeed, who has the right to be dealing with those arrangements.  This scenario was publicly played out several years ago in the case of a Black Watch soldier whose mother and wife could not agree on his funeral arrangements.

4. What are the main provisions of the 2016 Act?

The 2016 Act offers welcome guidance and, in particular, lists in order of priority who may make the necessary funeral arrangements, but only in the absence of specific instructions having been left by the deceased person.  The Act describes this as a situation where the deceased left no “arrangements on death declaration” or, if they did, that it would not be reasonably practicable to give effect to those arrangements.

The Act confirms that the “nearest relative” may make the necessary funeral arrangements.  In order of priority, the “nearest relative” is defined firstly as the deceased’s spouse or civil partner, followed by their cohabitant (i.e. someone with whom they had been living, as if married to each other, for at least 6 months prior to death), followed by the deceased’s children (including step-children) and, thereafter, other adult relatives in order of priority and, finally, a long-standing friend if no family members are willing or able to do so.

5. Potential areas not covered by the Act

The dynamics of the ‘modern’ family may not sit particularly well with the priority list and, unfortunately, the Act does not completely remove the possibility of family disagreement.  Say, for example, the children, including the step-child, of a deceased parent disagree on the funeral arrangements; they are obviously of ‘equal footing’ in terms of the priority list set out in the Act.  Any unresolved dispute of this nature may require a court decision to resolve the matter. 

To avoid any of these difficulties, we would always recommend including your funeral wishes in your Will or at least having your instructions written down separately and kept safely with your Will.  This will help to ensure that there is no ambiguity or potential cause for conflict at an already difficult and emotional time for bereaved families.

If you need any advice about Will drafting including funeral instructions or dealing with the administration of an estate, get in touch with Blackadders’ Private Client Teams working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Joanne Todd, Associate Solicitor
Private Client, Executries
Blackadders LLP




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