Most of us assume that writing our funeral wishes into a Will settles the matter. Unfortunately, a Will on its own is often the least effective place to record them.

Who actually decides what happens at your funeral?

Under Scots law, the Burial and Cremation (Scotland) Act 2016 allows an adult to leave what the legislation calls ‘a declaration’, setting out who is to make the arrangements after their death. That declaration can be written or spoken.

A declaration allows you to nominate the person you want to arrange your funeral. It gives that person responsibility for making the arrangements but does not prescribe exactly how your funeral should be carried out.

Where there is no valid declaration, or where the wishes cannot reasonably be carried out, the right to make the arrangements passes down a statutory list. It begins with a spouse or civil partner, then a cohabitant, then children, parents, siblings, grandparents, grandchildren, aunts and uncles, cousins, nieces and nephews, and finally a longstanding friend. Where two or more people share the same position on that list, they are expected to decide together, and if they cannot agree the matter can be put before the sheriff.

Under section 67 of the Act, the person making the funeral arrangements must have regard, so far as known, to the deceased's expressed wishes concerning burial, cremation or hydrolysis, and to their religion or belief. That qualification carries a great deal of weight. Wishes that nobody knows about cannot be taken into account.

Should funeral wishes go in your Will?

There are some arguments in favour of stating your wishes in your Will. A Will is prepared and reviewed properly with a solicitor and is a formal document that is unlikely to go missing. Also, if it names the person who is to make your funeral arrangements, it can operate as a declaration under the 2016 Act. That has a real legal effect and it is well worth having.

The drawbacks are practical rather than legal:

• Your Will may simply not be read in time.
• If you haven’t named the person you wish to arrange your funeral, directions stated in a Will are not binding on your executor who commits no wrong by departing from them.
• Changing your mind means a codicil or a new Will, with the cost and formality that involves.
• A Will is also not a natural home for the detail, such as the hymns, the readings, the dress code, or whether you would prefer donations to a charity rather than flowers.   
• Once Confirmation has been granted, the Will becomes a matter of public record, which is not where every family would choose to have personal instructions sit.

Is a Letter of Wishes the answer?

A Letter of Wishes sits alongside a Will and guides the people who have to carry it out. It is private, it is informal, it can be rewritten on a wet afternoon without a solicitor present, and it can run to as much detail as you like. It is not legally binding, but for funeral arrangements that is rarely the point.

As a home for funeral wishes it is a good fit, with one caveat. If the letter lives in the same envelope as the Will, it inherits exactly the same timing problem. A Letter of Wishes only does its job if somebody knows it exists and can lay hands on it within a few days.

What about a dedicated plan of wishes?

The third option is to record your wishes with a funeral director. Many offer a free plan of wishes or wishes checklist: you work through a short form covering the practical choices, they hold a record and send you a copy, and you can usually update it whenever you like at no charge. 

The advantage is one of location. The document sits with the people your family will speak to within hours of a death, rather than with those they may not contact for weeks. If you have a funeral director in mind, it is worth asking whether they offer this.

Recording wishes in this way is a separate matter from buying a pre-paid funeral plan, which is a financial product and a different decision altogether.

Record your plan of wishes with William Purves Funeral Directors using their online form:
Plan of wishes

So where should you write your wishes down?

The honest answer is probably more than one place, because each option covers a weakness in the others. We suggest that you:

• Name the person who is to make your funeral arrangements in your Will. This is the part that carries legal weight.
• Record the detail in a Letter of Wishes or a funeral director's plan of wishes, where you are free to change it as often as you like.
• Tell the people concerned. This is the single most effective step and it costs nothing at all.
• Keep whatever you have written somewhere it can be found quickly. A sealed safe or a bank deposit box is not the place for it.

If you are an executor or a family member arranging a funeral, it is worth investigating whether any wishes were left anywhere before arrangements are finalised. You may wish to ask the deceased’s next of kin, solicitor, or local funeral director if they have any records of wishes. Reasonable funeral expenses are normally met from the estate, so cost should rarely be the reason that wishes go unfulfilled.

How Paris Steele Can Help

Our Private Client team advises individuals and families across East Lothian on Wills, Powers of Attorney and planning for the future, as well as on the practicalities of winding up an estate. If you would like to review your Will, prepare a Letter of Wishes to sit alongside it, or add a declaration naming the person who is to arrange your funeral, we would be glad to help.

Call our North Berwick office on 01620 892138 or our Dunbar office on 01368 862746, or
contact us online.

This article is provided for general information purposes only and is not intended to constitute legal advice. The information contained in this article is accurate to the best of our knowledge as at the date of publication. As laws, regulations, guidance, and other relevant information may change over time, the content of this article may no longer reflect the current position.

The information contained herein may not apply to your specific circumstances and should not be relied upon as a substitute for professional legal advice.

If you require advice about your own situation, we recommend that you seek advice from a qualified solicitor. If you would like to discuss your circumstances or find out how we may be able to assist, please do not hesitate to contact our team for advice tailored to your individual needs.