We know that people in Scotland and the rest of the UK struggle to talk and think about death in comparison to other people in Western Europe.
In 2018, the Co-Op commissioned YouGov to undertake the biggest national study on our attitudes towards death and bereavement. It showed that 18 million of us are uncomfortable talking about death. This is a well documented, and perhaps unsurprising, problem in the national psyche, but it does create some real practical problems for people and their families.
The report raises some alarming findings around our preparedness for our own death, or the death of a family member. For example, nearly one in ten people surveyed had suffered considerable financial hardship as a result of bereavement. Furthermore, nearly half of those surveyed had not put any later life plans in place or been involved in sorting out arrangements following the death of a loved one. Not even one in three people reported having written a will.
The problem of large numbers of us not having a will is a well reported issue. A report from Which magazine last year corroborated the Co-Op report findings, and further revealed that significant numbers of us had no idea how to go about getting one.
However, there is a particular problem with the law on succession, as it’s known, which is less obvious but is becoming increasingly important as trends in families continue to evolve and change. This concerns the people we put in charge of the arrangements in our will, known as executors.
The problem is two-fold: firstly, that it’s very difficult to change the people in charge of sorting out the affairs of our will; and secondly, that settling the terms of the will requires the consent and agreement of all the named executors.
Although these issues are interrelated, they present quite different sets of issues for individuals and families.
For example, in the case of the former, imagine a scenario where a family fallout has meant that the relationship between the executors has deteriorated. Or, perhaps, the capacity of one of the executors, for whatever reason, has been diminished. This can cause significant delays in the settling of affairs after the death of a loved one, cause further emotional strife, and cause financial issues where funeral and other associated costs depend on using money set aside in the will.
In the latter example, if a member of a family dies and in their will they have named another family member with whom they no longer get along, this can also cause significant problems and delays as you need the consent of all Executors to implement the terms of the will.
In both examples, where the relationship between the executors and family is fraught, or where an executor refuses to give their consent given the will’s contents, the only option may be to take legal action to remove them. Quite clearly, this can be expensive and cause further delay and emotional hardship.
Since the last major examination of succession in 1964, there have been significant changes in Scottish society. As lawyers, we see these changes when more challenging cases come our way because the law has failed to catch up with changing societal trends.
The complexion of families is changing in such a way that the nature of the relationships between the people involved in settling the affairs of someone who has died may be different than before. For example, it is now much more common that the relationship between someone originally named as an Executor and the rest of the family has changed because of divorce.
Put simply, the law needs to catch up. The government has discussed making changes to the provisions regarding executors but currently has no plans to do so. There is lots of advice available, but the important point is that we need to be more aware of some of these considerations.
In the UK, we find talking about death difficult but making a will and ensuring it is up-to-date as our lives change is important for avoiding unnecessary further emotional and potentially financial hardship.
Morag Yellowlees is a partner in Private Client Services at Lindsays