April 2017 – “April is the cruellest month” – Burial and Cremation (Scotland ) Act 2016

Author: Mitchells Roberton
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  • The quote from T S Eliot’s The Wasteland is hardly cheerful but seems an apt title for the subject matter of this month’s update: burial and cremation.
  • The subject is not entirely topical except that this month is the anniversary of the passing of the Burial and Cremation (Scotland ) Act 2016 which, as they say, “does what it says on the tin”. Most of the Act is not yet in force and will only become so as and when Scottish Minsters make regulations to bring the rest into force.
  • The purpose of the 2016 Act is to provide a modern, comprehensive legal framework for burial and cremation. The previous existing legislation was old, dating back over 100 years, and had become increasingly unfit for modern purposes.
  • The 2016 Act provides a comprehensive modernisation of the legislation. Unsurprisingly, it is a substantial  piece of legislation – running to some 113 sections.
  • This note doesn’t attempt a summary of the wide-ranging provisions of the whole Act. It focuses exclusively on certain new provisions concerning the making of the funeral arrangements on the death of an adult. Usually, of course, when a funeral has to be arranged all those involved are anxious to co-operate with one another in order to make the process as positive and respectful as it can be.
  • But, occasionally, those closely involved can have very different views as to the form the funeral arrangements should take. In that regard the legal position as to who is the person in overall charge has been uncertain. That uncertainty can fuel the tension and distress which may arise where those close to the deceased have firm but differing views on the matter. The 2016 Act goes some significant way towards making the legal position clearer and avoiding the long drawn out wrangles that can otherwise arise.

Some illustration of the legal uncertainties as to who is in charge of funeral arrangements 

1980 case points to its being the executors in charge 

  • In Evans v McIntyre in 1980 there was a dispute between the sister and the estranged wife of a worker who had died on an offshore oilrig. The sister wished to bury the deceased in a family burial plot on the island of Eriskay. The widow wished the burial to be in Glasgow.
  • The judge said:

“Although there is no direct authority on the matter I apprehend that the law must have an answer to the question of who has the right to say how a dead body is to be disposed of, in the event of a competition. 

The answer in my opinion is that the person who has the right to decide is the executor of the deceased [i.e. the person named in the deceased’s Will to be in charge of administering the deceased’s estate], if there is one, or, if there is not, the person who would be entitled to be appointed executor dative [i.e. the person entitled to be appointed by the court to administer the deceased’s estate in a case where the deceased has not left a Will]. 

The executor has the responsibility of winding up the estate of the deceased and one of the first things he must do is pay the funeral account. That in itself is in my opinion a sufficient basis for saying that the executor has the right to determine the mode of disposal of the body…”

But 2011 case points to its being not so clear cut

  • The 1980 case has the attraction of giving a fairly clear cut rule. But the judge’s decision in that case was doubted by Lord Brodie in a similar case in 2011. Lord Brodie’s words give a flavour of the nature of the dispute:

“For reasons which each lady no doubt consider to be good, the deceased’s widow wishes him to be buried with military honours in a cemetery in Forfar whereas the deceased’s mother wishes him to be buried with military honours in a cemetery in the Wemyss, locations which are some forty-five miles apart.” 

  • He went on:

“No doubt there will be circumstances in which it will be appropriate for a Scottish executor to proceed to arrange for the conduct of the burial but only after consulting the wishes of the near relatives. In the event of a divergence of view I can see that the executor may have to come to a decision but only after giving consideration to such proposals as the family have to make. The executor who merely consulted his own preferences would be failing in his duties.”

  • In other words, things were not as clear cut as the judgment in the 1980 case might have suggested.

The 2016 Act to the rescue? 

  • As the cases mentioned above show, before the 2016 Act there was no legislation setting out who may instruct the disposal of human remains. In practice, it is normally the nearest relative who arranges for the disposal of the body and who chooses the method of disposal. But the meaning of “nearest relative” in this context is not clear, and this can lead to disagreements.
  • The Act sets out who may instruct the disposal of human remains, and provides an order of priority so as to remove the uncertainty about who is entitled to instruct the disposal of human remains.
  • The Act provides a definition of “arrangements on death declaration” by an adult as meaning a declaration “specifying the person by whom the adult wishes the arrangements to be made for the burial or cremation of the adult’s remains “ on death.
  • It then goes on to say that where there is no “arrangements on death declaration”, or it would be not reasonably practicable to give effect to it, then the “nearest relative” may make the arrangements. The “nearest relative” is then defined by way of a list staring with spouse/civil partner, then cohabitee (for at least six months), then child, then parent, and so on down to a “friend of long standing”.
  • This will not avoid all possible disagreements but at least the position will be clearer than it was.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Neil Mackenzie: njm@mitchells-roberton.co.uk

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