The Burial and Cremation (Scotland) Act 2016 received Royal Assent on 28th April 2016, with parts of the 2016 Act coming into force on 28th December 2016. Although the primary focus of the 2016 Act is to modernise the law in relation to burials and cremations, it will be of relevance to clients as it introduces a new framework for regulating funeral arrangements.
Some clients are very clear with their funeral wishes and record those in their Wills, whilst other clients may give no thought to the matter as “the family will know what to do”. Funeral wishes (either verbal or written) are an expression of wish only and are not binding - although they are usually followed in so far as they are practical or costs permit. Who is responsible for implementing those wishes and what happens if there is a dispute the event of a dispute has always been a grey area of the law.
Part 3 of the 2016 Act brings clarity to this matter. In the absence of an “arrangements on death declaration”, the 2016 Act confirms that the deceased’s nearest relative is responsible for making the funeral arrangements
So what is an “arrangements on death declaration”? This is a declaration (either in writing or verbal) by an adult confirming who should be responsible for implementing the funeral arrangements. So the starting point is deceased person’s Will or any other writings that they may have left. 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, then they prevail.
If the Will is silent on the matter or there is no arrangement on death declaration, then the nearest relative of the adult is responsible for making the funeral arrangements. The nearest relative is the person who, immediately before the adult’s death, was the adult’s:-
- spouse or civil partner;
- child (including step-children)
- uncle or aunt;
- niece or nephew; or
- longstanding friend.
If there is more than one person in a group (e.g. children), then they all qualify as the nearest relative and must make decisions together. If the highest ranking person does not wish to act, then that responsibility passes to the next person on the list.
The Act has similar provisions for children (which is anyone under the age of 16), although a child cannot leave an arrangements on death declaration (even though a child can sign a Will at the age of 12). The nearest relative of the child is the person who, immediately before the child’s death, was that child’s:-
- parent or the person who held parental rights and responsibilities
- uncle or aunt
- niece or nephew
- longstanding friend.
Once the nearest relative is identified, that person must decide whether the remains are to be buried or cremated. In coming to that decision, regard must be had to any previous wishes of the adult and also their religious beliefs.
Although these rules are not in force yet, clients should be aware of the upcoming changes. Existing Wills (which usually set out the funeral wishes, but not who should implement them) may need to be updated if clients wish to appoint a particular person to implement their funeral wishes or if they are concerned that there may be a family dispute on death.