A story we hear more often than you might think
Picture a family in the days after a death. There is grief, a funeral director to call, and decisions that need to be made quickly. Nobody is quite sure what Mum would have wanted, so the family do their best and arrange a service at the local crematorium. Two weeks later, when the family sit down with her solicitor to go through the Will, they discover she had asked for a simple woodland burial and a particular reading from her favourite poet.
Nobody did anything wrong. The wishes were written down, carefully and in good faith, but in the one place nobody thought to look until it was too late.
The timing problem nobody mentions
Many of us assume that putting funeral wishes in a Will settles the matter. The difficulty is timing. In Scotland, most funerals take place within a week or two of a death, while the Will is often not looked at in detail until the executry process gets under way. By then, the arrangements have usually been made and the funeral may already have taken place.
That does not mean your Will has no part to play. It means that where you record your wishes, and who you tell about them, matters just as much as what you write.
What Scots law says about who arranges your funeral
The Burial and Cremation (Scotland) Act 2016 allows you to make what it calls an “arrangements on death declaration”. This is simply a statement naming the person you want to make the arrangements for your burial or cremation. The Act does not require it to be in any particular form, and it can even be made verbally, although putting it in writing is far more reliable.
If you have not named anyone, or the person you named is unable or unwilling to act, the responsibility passes to your nearest relative under a fixed order set out in the Act. That order starts with a spouse or civil partner, followed by a cohabiting partner who had lived with you for at least six months, and then children, parents, brothers and sisters, grandparents, grandchildren, aunts and uncles, cousins, nieces and nephews, and finally a friend of long standing. Anyone under 16, anyone who does not wish to act, and anyone who cannot reasonably be contacted in time is passed over. Where there is a genuine dispute, the matter can be put before the sheriff.
When a nearest relative makes the arrangements, the law requires them to have regard to any wishes you expressed about burial or cremation, and to your religion or beliefs, so far as they are aware of them. That final phrase is the important one. Wishes that nobody knows about cannot be taken into account.
Naming someone in your Will: a small clause with real effect
This is where your Will earns its place. A clause naming the person you want to arrange your funeral can operate as a declaration under the 2016 Act. It is prepared with care, it is kept safely, and it carries genuine legal weight. For families where relationships are complicated, perhaps after separation, a second marriage or a long period of estrangement, it can prevent a great deal of uncertainty and upset at the worst possible time.
What a Will is less suited to is the detail. The music, the readings, whether you would prefer donations to a local charity instead of flowers, or where you would like your ashes scattered, are personal choices that you may want to change over the years. Updating a Will every time you change your mind about a hymn is neither practical nor necessary. It is also worth remembering that in Scotland a Will can become publicly accessible once Confirmation has been granted, which is not where everyone would choose to set out such personal instructions.
Where the detail belongs
A Letter of Wishes is a much better home for the finer points. It sits alongside your Will, it is private, and you can rewrite it whenever you like without a trip to your solicitor. It is not legally binding, but for funeral arrangements that is rarely the concern. What your family usually want is simply to know what you would have wanted.
The one catch is that a Letter of Wishes shares the same timing problem as a Will if it is sealed in the same envelope. It only works if somebody knows it exists and can find it quickly.
Leaving your wishes with a funeral director
Another option is to record your wishes with a funeral director. Many offer a free wishes form or record service, which you can usually update at no cost. The advantage is simple: your wishes sit with the people your family are likely to contact within hours of a death, not weeks.
This is quite separate from buying a pre-paid funeral plan. A funeral plan is a financial product, regulated by the Financial Conduct Authority, and is a different decision altogether. You can record your wishes without committing to paying for anything in advance.
A joined-up approach works best
In practice, the most reliable answer is to use more than one of these options, because each covers a weakness in the others. Name the person you want to arrange your funeral in your Will, as this is the part with legal effect. Record the detail in a Letter of Wishes or with a funeral director, where you are free to update it. Keep copies somewhere they can be found easily, not in a safe deposit box that nobody can open for weeks. Most importantly of all, talk to the people concerned. A conversation over a cup of tea costs nothing and is often the single most effective step you can take.
If you are the one arranging a funeral
If you are making arrangements for someone who has died, it is worth pausing to check whether any wishes were left before everything is finalised. Their solicitor, next of kin or a local funeral director may hold something you are not aware of. It may also help to know that reasonable funeral costs are normally met from the estate, so cost should rarely be the reason a person’s wishes go unfulfilled.
How maloco mowat parker can help
Our Private Client team helps individuals and families across Fife to plan ahead with confidence, from Wills and Powers of Attorney to guiding families through Executry when the time comes. Whether you would like to add a clause naming the person to arrange your funeral, prepare a Letter of Wishes to sit alongside your Will, or review arrangements you made some years ago, we would be glad to help.
To arrange a confidential discussion, contact Stacey Parker on 01383 629 720, visit us at 6-8 Bonnar Street, Dunfermline, or get in touch using the contact form on our website.