A funeral dispute can happen when there's uncertainty about arranging a deceased person's funeral, leading to family conflicts and emotional strain at an already difficult time. Disputes regarding burial often include a dispute over cremation or burial, the location of the burial, the date of the funeral (especially if close family are attempting to attend from overseas), and family members not informing friends and family of funeral arrangements. So who has the right to arrange a funeral and decide how the body should be dealt with?
The Law in Scotland
Following high profile and long running cases of funeral disputes, legislation was introduced to deal with situations where there was ambiguity as to who should make the decision.
The 2016 Act introduced a 'priority list' of those who are responsible for organising a deceased's funeral. This applies where funeral instructions are not left, or they are impractical.
When an adult dies, the responsibility for making arrangements for their burial or cremation rests with certain individuals in a specified order:
The first person with the responsibility is stated to be the deceased's spouse or civil partner, if one exists, and they are willing and able to act. Thereafter a partner (living as if married for over 6 months) could act and if there is no partner then the child would have responsibility. If there is more than one person in each class they both rank equally.
The Act does not discriminate between half-blood relatives or step-children. They are to be treated as equal to full-blood and children. The legislation however only deals with the funeral and not the funeral service. There is also still room for dispute - siblings who disagree, spouse vs cohabitant.
Put plainly, the executor of a Will has the final say, or if there is no Will, the surviving spouse or children will have the final say.
Although not removing the possibility of disputes, the Burial and Cremation (Scotland) Act 2016 establishes a more coherent process for making funeral arrangements while ensuring that decisions should be made in accordance with the best knowledge of the deceased's wishes and religious/cultural views.
Avoiding Funeral Disputes
Disputes most commonly arise where there are no wishes expressed, or no Will at all (and therefore no guidance for making arrangements). However, even with a Will disputes can still arise, most commonly if the wishes expressed are inconsistent, if the executor and other family members disagree over the arrangements, or if the Will is very old and other family members or possibly a more recent partner believe the deceased’s wishes had changed over time. This is one of the many reasons why it is recommended to create a Will and keep it up to date.
Practically speaking, the executor is likely to involve the family of the deceased when deciding on how to dispose of the body and should follow any instructions left by the deceased to avoid conflict. This consultation may involve discussing the deceased's wishes, religious or cultural considerations, and any other relevant factors, however, the testator's wishes for their funeral are not legally binding.
Resolving a Funeral Dispute
There are a number of ways to resolve these disputes, and often a supported discussion between the parties can resolve the dispute or at least narrow the issues in dispute. Legal assistance should be sought at the earliest opportunity if there is the possibility of a dispute so that all options can be considered, including routes to finding a resolution quickly to create as little a delay as possible.
If a funeral dispute was to go to court, the court would usually consider specific factors in deciding where the deceased should be buried including the deceased's wishes, the wishes of family and friends, the place the deceased was most closely connected with and other practicalities — for example, the location of the proposed burial compared with the location of the body.
For further specialist advice on funeral disputes, please contact our Private Client team. With our specialised knowledge in Scots Law, we can provide tailored guidance and support to navigate complex issues surrounding funeral arrangements and disputes. Our Aberdeen Solicitors and Private Client team is backed by experienced court lawyers who can robustly litigate over any disputes.
