Burial or Cremation – Who Decides?

On 4th April 2019 the law was changed (by the Burial and Cremation (Scotland) Act 2016) to provide new rules on who can decide what is to happen to your body after death.

Current Practice

Current best practice is to put provisions in your Will stating whether you want buried or cremated and who is to carry out the arrangements. The new law will not affect any such measures already taken or made in the future. However, if a deceased person made no provision in their Will it was left to their next of kin (not their Executor – who may not be next of kin) to decide. Unfortunately, there was no legal definition of the term “next of kin” and disputes were becoming more frequent.

New Law

The new legislation provides that if an adult (a person over 16) makes a direction and it is reasonably practicable to give effect to it then their wishes will be followed. The legislation actually refers to “an arrangements on death declaration” and this phrase is wide enough to cover wishes made verbally as well as in writing but it is recommended that you make no doubt about your wishes by putting it in writing. If you are making a Will that would appear the best place to set out any written direction but it need not be contained in a Will, any written evidence will suffice. However a separate letter or note is much easier to lose than a Will.

What’s changed?

The new law does not change things when a written declaration has been made. The change comes when no arrangements on death declaration has been made. The law now creates a ranking order to determine next of kin. For those who die over 16 the hierarchy is as follows:-

1. Spouse or Civil Partner

2. Cohabitant (if living together for at least 6 months)

3. Child (including step children)

4. Parent

5. Brother/Sister

6. Grandparent

7. Grandchild

Any relative that falls within one of the categories will rank equally with any other relative in the same category. For example a brother and sister are treated as having equal rank as will both parents. Stepchildren of the adult who has died will be treated as if they were a natural child. Any half blood brother or sister will have the same rights as a whole blood sibling.

No written arrangements – still possible disputes?

With there being many different types of family models there is still plenty of room for dispute. For example a deceased person who separated from their spouse a long time before death did not divorce, but died cohabiting with a partner, will find their estranged spouse entitled to decide on funeral arrangements. A person only has to live with a person for 6 months before they rank prior to a child. A step child can now rank before a blood relative.

It is also very important to note that the new law only applies to the burial and/or cremation. It does not relate to the actual funeral service. There may still therefore be conflicting views as to the type and nature of the service and any event that is to take place after burial/cremation such as a funeral tea.

What should you do?

In short, make a Will specifying exactly what you want to happen on your death and who is to be responsible for carrying it out.

If you would like to discuss any matter raised call Andrew Purdie or Joy Maclean on 01506 420333.