In recent years, following the tragic death of a young Black Watch soldier, a case regarding disputed funeral wishes reached the headlines. In addition, we have seen a number of changes in the law covering burials and cremations in Scotland.
A soldier serving in the Black Watch passed away in 2011 and his mother and wife could not agree on the terms of his funeral. The soldier had expressed a wish to his mother that he would like to be buried near his grandfather. He subsequently expressed a wish to his wife to be buried beside her late brother. The soldier appointed his mother as his executor, giving her the responsibility of administering his estate with everything passing to his wife. The Will did not include funeral arrangements.
Subsequently, the relationship between the soldier’s mother and wife broke down. They could not agree on the funeral arrangements. The case eventually went before Sheriff Johnson of Forfar Sheriff Court. The Sheriff found that the soldier’s wife was entitled to make the arrangements for the funeral of her late husband. Sadly, it took 4 years for his remains to finally be laid to rest.
This is an unusual case in that the soldier had been slightly misled when drawing up an Army Will by his Sergeant who had stated that the executor and the beneficiary could not be the same person. If this misinformation had not been given to the soldier then he would have likely appointed his wife as both executor and beneficiary to his estate.
Perhaps offering some further clarity following this case, The Burial and Cremation (Scotland) 2016 Act (“the Act”) provides a modern legal framework for burial and cremation. The existing legislation was old, dating back over 100 years, and had become
increasingly out of date for modern life. The Act offers guidance and clarity in many areas, some of which are explained below.
Leann Brown, Associate Solicitor confirms, “One area in particular where the Act should offer some clarity is where there is such a dispute amongst family members over the arrangements of a deceased’s funeral. Disputes such as this do happen, especially if the deceased left no written instructions. The 2016 Act provides some useful directions in this area.
If the deceased leaves no guidance of their intentions, or it is impossible to fulfil their wishes, the 2016 Act provides that their “nearest relative” is entitled to make the funeral arrangements. The 2016 Act sets out who may be classified as a “nearest relative”. The deceased’s spouse or civil partner is at the top of the list.”
Leann added, “If our clients have any concerns regarding their wishes being followed, we would be happy to review their current arrangements.”
For further advice or information on this or other legal issues, visit www.millerhendry.co.uk