Who has authority to make funeral arrangements?

Arranging a funeral is always going to be emotional. Ideally, everyone will be agreed on who should make the funeral arrangements to avoid any further distress. In some circumstances, however, particularly where there is a dispute, the question arises as to who actually has the right to make the arrangements.

Many people include their wishes in their Will and some are very clear, however they are not binding instructions. Aside from this, it’s not that common for a testator to expressly state who they want to implement their wishes.

The Burial and Cremation (Scotland) Act 2016 received Royal Assent on 28 April 2016 with a number of sections coming into force on 28 December 2016. The purpose of the Act was to modernise the law in relation to making funeral arrangements in Scotland and it aims to provide some clarity to what was once an uncertain area of law.

Arrangements on Death Declaration

The Act clarifies what should happen in the absence of an “Arrangements on Death Declaration” being made. The guidance notes which accompany the Act indicate that the Declaration can be written or verbal. If the person clearly stipulates who should make arrangements, then this will prevail. Where someone sets out funeral wishes in their Will but does not specify who should implement them, the wishes will not qualify as an ‘Arrangements on Death Declaration’.

What will happen when no instructions are left?

If an adult dies without leaving any indication of their wishes, or their wishes cannot be reasonably implemented, the ‘nearest relative’ will be entitled to make the arrangements. The Act provides the following hierarchy for defining “nearest relative”:

• Spouse or civil partner;
• Cohabitant;
• Child (including step-children);
• Parent;
• Sibling;
• Grandparent;
• Grandchild;
• Uncle or Aunt;
• Cousin;
• Niece or nephew; or
• Longstanding friend.

The Act might not prevent disputes from arising, but it does provide much needed clarity as to who should make funeral arrangements. If there is more than one person in a group (e.g. children) then they should make decisions together. If they cannot agree then a claim can be brought before the Sheriff. If the highest ranking person does not wish to act, the responsibility will pass to the next person.

Children

There are similar provisions in place for children (anyone under the age of 16). The Act provides the following hierarchy for defining the “nearest relative” for a child:

• Parent or person who held parental rights and responsibilities;
• Sibling;
• Grandparent;
• Uncle or Aunt;
• Cousin;
• Niece or nephew; or
• Longstanding friend.

A child cannot leave an ‘Arrangements on Death Declaration’, despite being able to sign a Will at the age of 12.

Get in touch

If you’d like to prepare or update your Will appointing someone to carry out your wishes, please get in touch with your usual Harper Macleod contact.