January is often the time when we focus on getting our personal affairs ‘in order’, but ensuring you have an up to date Will is one matter which is often overlooked. A properly drafted Will serves many important purposes, one of which is to provide an opportunity to detail your wishes when it comes to funeral arrangements.
Coping with the death of a loved one is incredibly hard and arranging a funeral can often be overwhelming; this is only intensified if the family disagree on the appropriate arrangements.
Currently, the law on who has the final say on such arrangements is unclear and, where there is disagreement among a family, this can result in drawn out court battles, inevitably prolonging the heartache for all of the family.
New legislation is set to come into force in the near future that will determine which family members will have the final say when it comes to arranging a funeral in the absence of express directions from the deceased.
The Burial and Cremation (Scotland) Act 2016, which, it is anticipated, will come into force this year, makes clear that, where the deceased has made an ‘arrangements on death declaration’, setting out who is to make the final decision on funeral arrangements, that person will take priority, regardless of their relationship to the deceased.
It is open to you to leave as detailed instructions as you wish on the arrangements themselves, for example whether you prefer burial or cremation, where your ashes should be scattered, the sort of service you wish and the readings and songs that will be played. Having guidance on what arrangements you would like will help the chosen family member to ensure your last wishes are respected. A Will is a very useful place to include a declaration and details of your wishes, but a separate written note will be equally valid so far as funeral arrangements are concerned.
Section 65 of the 2016 Act sets out, in order of priority, which nearest relative has the right to make arrangements for burial or cremation in the absence of any express declaration. The order of priority will be: Spouse/civil partner (unless separated)
Adult child (including stepchild)
Brother/Sister (including half-siblings)
Friend of long standing
In doing so, the relative must have regard to any wishes that you expressed on burial or cremation as well as your religious beliefs.
While the new legislation brings welcome clarity, and will hopefully reduce the number of cases reaching the courts, disputes will no doubt still arise, for example where children disagree as to what mum or dad would have wanted. Such disputes can lead to long term damage to the relationships of those left behind. The best way to avoid this is to make it clear, in writing, who should be making the final decisions and to communicate with your family in advance so that everyone knows what your wishes are.
Considering funeral arrangements is only one reason why having a Will is so important and, if you haven’t put one in place as yet, it should be elevated to the top of your list of resolutions for 2018.
Eilidh Adams, Associate, Gillespie Macandrew