Cremation or Burial? Who Decides?

Author: Laura Burns
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On the 4 April 2019 section 65 of the Burial and Cremation (Scotland) Act 2016 came into force and with it a new framework for dictating who decides what is to happen to you after you die.

At the moment many people make provisions in their wills regarding their funeral arrangements, for example whether they want to be buried or cremated and where they would like to be buried or have their ashes scattered. Such directions are not legally binding but do provide guidance to next of kin.

But what does next of kin actually mean? There is a tragic case of a soldier from Forfar who was killed while on training in Germany and a dispute arose between his widow and his mother resulting in his body being held in a London morgue for three years.

The incoming legislation hopes to clarify the ranking order of who can decide on your funeral arrangements if there are no instructions in a will. If there are directions in a will and it is reasonably practicable to implement these then your wishes shall be followed. For those over 16 where there are no provisions in a will the ranking order is as follows:

  • Spouse or civil partner
  • Cohabitant if living together for a period of at least six months
  • Child including step children
  • Parent
  • Sibling
  • Grandparent
  • Grandchild
  • Aunt or uncle
  • Cousin
  • Niece or nephew
  • Longstanding friend

If any class contains more than one, for example two parents, then they will rank equally.

Although it is hoped that the legislation will prevent disputes between parties in relation to a deceased person there are potential issues:

  • It may be that the deceased was separated from a spouse and cohabiting with a partner. Unless the spouses had separated formally by way of a separation agreement or court order it is likely that the spouse would rank above the cohabitant even if the relationship with the cohabitant has been long term and there has been no contact with the spouse for years.
  • Another issue may be that a person has only got to live with someone for six months to rank above a child of the deceased.
  • A step- child is included in the definition of child and therefore it is possible for an adult step child with whom there is not a close relationship to make arrangements ahead of a close blood relative.
  • Further an adult child may predecease divorced or separated parents who may have conflicting views.
  • Finally who is to police this legislation- the funeral directors? Is it the undertakers’ responsibility to ensure they are dealing with the highest ranking person?

If you have specific wishes regarding your funeral please contact me Laura Burns and I will ensure that your will or any declaration is prepared in accordance with this new legislation. I can be contacted on 0141 552 3422 or by email lcb@mitchells-roberton.co.uk

Laura Burns

About Laura Burns

Laura joined Mitchells Roberton in January 2018. She graduated from Strathclyde University in 2006 where she obtained a B.A. (Hons) in History. She studied for her L.L.B, also at the University of Strathclyde, and thereafter completed her Diploma in Legal Practice in 2009. In addition to this she obtained her STEP Diploma (with Distinction) in 2017. Laura is also a Notary Public and is a Tutor in Private Client for the Diploma in Legal Practice at Strathclyde University. She started her Traineeship with Bird Semple in 2011 specializing in Private Client and Conveyancing. After leaving Bird Semple in 2011 she joined the Private Client department at Macdonalds Solicitors (now Morton Fraser) before moving to Harper Macleod in 2013. Laura advises clients on all aspects of Private Client issues including the preparation of Wills, estate planning, and Powers of Attorney. She has extensive experience in managing the administration of estates, including complex and contentious estates. She enjoys working closely with clients to ensure that their personal affairs are in order and assisting their families through what can be an extremely difficult and emotional period. As well as this she advises on the creation and administration of Trusts, Trust accounting and dealing with assets passing out of Trusts to beneficiaries. Outside of work Laura enjoys travelling, socializing with family and friends, baking, rugby, playing touch rugby and exercising. Email: lcb@mitchells-roberton.co.uk

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