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The Burial and Cremation (Scotland) Act 2016 (‘2016 Act’) has now been on the statute books for one year. The Act provides a comprehensive and modern framework for funeral arrangements in Scotland.  This Insight takes a closer look at some of its key provisions.

Funeral Arrangements

Arranging a funeral for a loved one is always a very difficult and emotional task. For some families, however, there is the added complexity of determining the contentious question of who actually has the right to make arrangements for the body and the funeral. Historically this highly sensitive issue has triggered family disputes, typically between a step-parent and the deceased’s children.

While many clients choose to include their funeral wishes within their Will, this is not binding on their Executors or family. Although in most cases individuals will want to fulfil the wishes of the deceased, conflicts can and do arise. This is particularly the case where the instructions provided in the Will can no longer be reasonably achieved, such as if the church or crematorium no longer exists. Where no instructions are left at all, this can also lead to arguments. The 2016 Act provides welcome clarity in this area.

Going forward, where an adult dies and either leaves no indication of their intended arrangements on death, or these arrangements cannot reasonably be achieved, the legislation confirms that the deceased’s ‘nearest relative’ is entitled to make the necessary funeral arrangements. The Act provides a hierarchy of individuals who may fall within the definition of nearest relative. The person’s spouse or civil partner tops the list, followed by other adult relations ranked in order of priority. Should the person have no surviving adult relations who are over the age of 16, or none who wish to take responsibility for attending to arrangements, a longstanding friend can step in.

Although the legislation does not remove the possibility of disputes arising, it does provide a clear answer to the question of who can take control of the funeral arrangements. Ultimately, if a dispute arises between individuals with an interest, such as two relatives who rank equally under the new Act, a claim can be brought before the Sheriff Court in order to resolve the matter.

Burial Rights

The 2016 Act includes new provisions regarding the right to burial. This will affect arrangements following a death as well as clients wishing to put in place a pre-paid funeral plan setting out their wishes.

The legislation introduces the concept of a ‘burial right’. This is essentially the right to be buried in a particular plot of land. Burial Authorities, being the Local Authority for the particular region, are given the power to sell a right of burial in/to a plot or lair within a burial ground. This right includes a right to be buried in that plot and also to determine who else may be buried there.

While this may sound similar to the previous system, the important point to note is that the burial right is no longer indefinite. The right now remains in force for a period of 25 years, after which it expires unless an application to extend the period is made and granted. An extension is valid for a further 10 years. This change reflects a need for burial space and limits the likelihood of lairs remaining empty when a person is buried elsewhere. It is therefore very important to ensure that you take note of the dates and apply to have your burial right extended in good time to avoid your plot being re-sold.

It should also be noted that a burial right does not include the right to erect a headstone and a separate application requires to be made to the Burial Authority for this.

Cremation

There have been a number of scandals in recent years concerning cremation and the disposal of ashes. The 2016 Act addresses this matter, particularly the concerns voiced by the Infant Cremation Commission following historical practices at some crematoriums. While much of the new provisions are aimed specifically at crematoriums, the Act also makes provision for how ashes are to be dealt with following a cremation.

While this may sound unlikely, it is not unheard of that ashes are left with either the crematorium or funeral director after the funeral. This can arise due to a family misunderstanding where one family member thinks that another has collected them, or simply where no one knows what is to happen to the ashes. In some cases ashes can be held by funeral directors or crematoriums for a number of years.

Where ashes are not collected, the legislation imposes an obligation on the crematorium or funeral director to undertake reasonable investigation to ascertain from the person who registered the deceased for cremation whether the ashes are to be picked up. If they continue to be left following further communication, the ashes can be returned to the crematorium (if not already there) and ultimately disposed of by the crematorium staff. It is therefore important to ensure that the family put in place appropriate arrangements for scattering, burying or otherwise disposing of the ashes.

Conclusion

The new framework provides clarity for families at this most difficult of times, giving clear guidance on matters which can be fraught and delicate in nature. For more information or assistance with making arrangements following a death, please contact any member of the Private Client Team.

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