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 appointed his wife as both executor as well as the beneficiary to his estate.
In light of this case, along with the need to modernise the law in relation to burials and cremations, the Burial and Cremation (Scotland) Act 2016 received Royal Assent on 28th April 2016 with parts of it coming into force on 28th December 2016.
This Act also gives powers to burial authorities to manage burial grounds through to ways to support ongoing supply of burial space. It also allows the Scottish Ministers to introduce a licensing scheme for funeral directors. The Act also applies to private individuals in that it states who is responsible for implementing the individual’s wishes on their death and what happens if there is a dispute.
Some clients are very clear with regards to their funeral wishes and record these in their Will, whereas other clients prefer to give no thought to the matter, leaving it up to family members to make these decisions or assume the family will ‘know’ their wishes.
Part 3 of the 2016 Act clarifies who is responsible for making funeral arrangements if no one has been nominated and introduces an ‘arrangements on death declaration’.
An ‘arrangements on death declaration’ is a declaration in writing by a person confirming who will be responsible for making their funeral arrangements. The starting point would be the deceased person’s Will or any other writings they may have left. Anyone can be appointed to take charge of the funeral arrangements and it does not need to be a family member or the executor of your Will (if you have left a Will). The executor does however have responsibility for paying for the funeral as it is paid from the deceased’s estate and only the executor can access the funds.
If no ‘arrangements on death declaration’ has been left and no Will has been made, or the Will does not include a funeral clause, then the Act at Section 3 provides a ‘ranking’ of persons who are responsible for making the funeral arrangements. This is the nearest relative who, prior to the person’s death was their spouse or civil partner, cohabitant, child (including step child) the adult’s parent, brother or sister, grandparent, grandchild, uncle/aunt, cousin and so on.
Cohabitant means a person living with the deceased prior to their death as if they were married to each other and had been living so for a period of at least 6 months.
The Act also states that step-children are to be treated as children of the deceased and half brothers and sisters are to be treated the same as full brothers and sisters The Act does not apply to children under 16 years of age.
The Act tries to provide a clear framework should there be any dispute following from the case mentioned above. However it is not hard to imagine circumstances which will continue to cause controversy and anguish. For example, if a cohabitant of not so very long standing ranks above close family members in having the right to make funeral arrangements if the deceased has left no form of ‘arrangements on death declaration’ or left such a declaration in their Will.
We would suggest a Will is put in place which clearly states what a person’s intentions are on their death. This should name the person they wish to make their funerals arrangements, and express whether they wish their remains to be cremated or buried, being a helpful guide for the person they have nominated. The person making the Will should bear in mind that the person they appoint as executor will be paying for the funeral arrangements from the estate, and perhaps for ease of administration, the executor should be the person making the funeral arrangements. In any case, making a Will, taking time to think about your funeral, and naming the person you wish to make your funeral arrangement should provide direction and some comfort to those you leave behind as they know they are carrying out your last wishes.
Date Posted: 04/07/18