Scottish corner – Burial and Cremation (Scotland) Act 2016

In Scotland, 2016 saw the passing of the Burial and Cremation (Scotland) Act 2016 (“the Act”).  The 7 Parts making up the Act deal in turn with each of burial, cremation, arrangements, inspections, funeral directors and finishing with the miscellaneous and general provisions.  These parts each deal with providing guidance and regulation in respect of these areas on death.  Whilst not yet in force (although intended to come into force in the coming months), perhaps the most relevant part of the Act to an SFE practitioner in their day to day work will be section 65 of Part 3 – Arrangements.  Indeed, it would be prudent for practitioners to incorporate the principals of this Part into practice now, even before it comes into force.

Section 65 of Part 3 of the Act deals with the arrangements on the death of an adult and introduces the concept of an arrangement on death declaration.  Whilst most Scottish Wills are likely to include a statement as to whether the testator wishes his/her body to be buried or cremated and indeed some testators may go even further with a separate letter of wishes providing detailed guidance in terms of the conduct of their funeral, burial place or wishes regarding scattering of ashes, the arrangement on death declaration takes this a step further by specifically nominating someone to arrange the funeral and burial/cremation.

Section 65(8) of the Act states that an arrangement on death declaration is 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 the adult’s death”.  This is a fairly straightforward concept and can be easily incorporated into practitioners’ styles without much amendment.  A simple declaration as part of the funeral instructions clause stating who should organise the funeral and burial/cremation will be sufficient.  Of course, should the testator prefer, this declaration can be incorporated into a separate declaration to be held alongside the Will.

Given that there will be numerous adults without such a declaration in place, the majority of section 65 of the Act provides for the circumstances where there is no such declaration in place.  Section 65(2) of the Act states that the person who can arrange the burial or cremation is the “nearest relative” with s.65(3) setting out the order of preference for a nearest relative.  The list within s.65(3) is generally as to be expected, but does highlight the importance of practitioners’ knowing their clients well and their family dynamics.  Top of the list is spouse/civil partner followed by cohabitee, then children.  Whilst in the majority of cases this is likely to reflect a testator’s wish, any practitioner can imagine a situation where this preference in itself could cause problems for a family on death.  Encouraging the use of an arrangement on death declaration or at least highlighting the order of “nearest relatives” to clients is of vital importance to ensure a testator’s wishes are met for their final send off.

(Author: Nicola Gibson)