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Last instructions

13 November 17

Executries briefing: a 2014 case has left the law in a state of uncertainty over who has the final say as to the disposal of a body; clear instructions in a will would resolve the issue

by Tony Anderson

In 2014 I was instructed in a case before Sheriff Johnston in Forfar Sheriff Court, SC v LM. The sheriff held that the widow of a deceased, living with him at the time of death, was entitled to decide on the necessary funeral arrangements. The deceased left a will nominating his mother and brother as executors, but no specific written intention or wish as to where he was to be cremated or buried. He was a serving soldier, and during conversation on leave had told his widow he wished to be buried alongside his brother in law. This decision was appealed by the executor as she thought he should be buried elsewhere, but the appeal was subsequently withdrawn.

The tragic upshot of the dispute was that the poor man’s body was left to languish in storage for more than three years before his final burial, not without acrimony and ill feeling at his graveside.

The absence of much-needed appellate court input leaves the law in Scotland sorely lacking and unclear. There is very little reported authority, although Sheriff Scott in Evans v McIntyre (Aberdeen Sheriff Court, 1980) provided guidance in contradiction to the presiding sheriff in this case:

“Although there is no direct authority on the matter, I apprehend that the law must have an answer to the question of who has the right to say how a dead body is to be disposed of in the event of a competition. The answer in my opinion is the person who has the right to decide is the executor.” Further recognition in Scotland of the special position of an executor was Lord Gill’s comments in Wills, Petitioners, albeit only reported in a case note in a 1996 Family Law Bulletin.

Sheriff Johnston’s rationale in my view was and is open to criticism, not least for perhaps attaching too much weight to the character and credibility of the particular executor over the executor’s actual role and status in law. As it is no longer being appealed, it leaves the law on who ranks wide open.

Notwithstanding the dearth of authority I found when preparing submissions, it struck me that perhaps the cure would have been for the deceased to have expressed his written intentions for his final resting place in his actual will. Most wills merely insert the generic “In the event of my death I wish to be buried/cremated.” That does not go far enough.

Three years on and the law is no clearer. Therefore chamber practitioners should perhaps take an informed instruction of a preferred resting place the client has settled on and insert it in the will. The executor, whether ranking or not, would be obliged to consider and implement the preference. 

Tony Anderson, partner, Rollos LLP, Cupar

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