Exhumation—the process of removing human remains from their place of burial—is a deeply personal matter. In this blog, Commercial Litigation Partner Michael Wells and Solicitor Ian Sargison discuss this topic in more detail in light of a recent opinion given by the Sheriff Appeal Court in G, Appellant [2025] SAC (Civ) 23. Given the potential for further changes under the Burial and Cremation (Scotland) Act 2016, now is an opportune time to take stock, share insights, and offer guidance to those who may be considering this sensitive step.
Why Might Exhumation Be Considered?
There are many reasons why families may wish to relocate a loved one’s remains. These may include, but are by no means limited to:-
- A desire to reunite family members in a shared burial site;
- A move abroad or to another part of the UK, making tending to the grave difficult;
- Concerns that the deceased’s wishes were not followed;
- Administrative errors in burial location; and
- Cemetery redevelopment or restoration works.
Whatever the reason, it is crucial to understand that in Scotland, remains are considered sacred and must be treated with dignity, care, and respect.
By extension, prior to any relocation, the Court’s authority must first be obtained. This gives rise to a number of procedural hurdles.
Procedure
- Certificate of Feasibility
Before any application to the Court can begin, a Certificate of Feasibility must be obtained from the Cemetery Administrator. This Certificate is essential and forms the foundation of the legal application that follows. It confirms:-
- Whether the exhumation is physically possible;
- Where the remains are currently located;
- If known, where they will be moved (known as “reinterment”) and the feasibility of doing so; and
Whether the process will affect any neighbouring burial plots
Importantly, it is the Cemetery Administrator who is responsible for carrying out the exhumation.
2. Legal Application to the Sheriff Court
Once the Certificate of Feasibility has been obtained, we assist by preparing a legal document known as a Summary Application. This asks the Court to:-
- Authorise the Cemetery Administrator to carry out the exhumation and reinterment;
- Grant all necessary powers to facilitate the process; and
- Allow the Summary Application to be shared with interested parties who may wish to oppose it.
It is highly likely that the Court will schedule a hearing to allow for any objections to be raised. Once the process is complete, the Cemetery Administrator must notify the Court accordingly.
What Will the Court Consider? Thoughts on G, Appellant [2025] SAC (Civ) 23
Background
Over time, the test applied by the Court in deciding whether to grant authority for exhumation has evolved, with its typical conception requiring necessity rather than mere convenience.
In G, Appellant, the Court initially refused to grant authority on this basis. In brief:-
- The deceased took her own life in 2002 aged only 16;
- Nearly 20 years later, her parents emigrated to Monaco but continued to visit Scotland regularly;
- The family company was due to relocate to England, leaving no relative nearby to tend the grave;
- The cemetery’s bereavement services opined that only skeletal remains would be present; and
- The family sought authority to relocate the deceased’s remains to Monaco.
The Court found no basis for saying the exhumation was more than convenient. Particular weight was given to the deceased’s lack of connection to Monaco, the possibility of further relocation by her parents, and the absence of anyone to tend the grave in Monaco in future. The decision was appealed on three grounds, most notably that the Court failed to consider the applicant’s human rights to family and private life under Article 8 of the European Convention on Human Rights (ECHR).
Concept Spotlight: Article 8 ECHR
Article 8 of the ECHR protects your right to a private and family life. This includes the right to maintain personal relationships, make decisions about your family, and live with dignity and respect. In the context of exhumation, it applies where a decision about a loved one’s burial affects your ability to honour their memory or maintain a meaningful connection with them.
The Appeal Court’s Decision
The Sheriff Appeal Court had to balance two competing principles:-
- The sanctity of human remains, which generally ought not to be relocated; and
- The applicant’s rights under Article 8 of the ECHR.
Human rights of this nature are not absolute, and the courts have developed an approach for assessing the acceptability of any interference.
The Court held that the correct test involves:-
- Identifying a valid reason for requesting relocation; and thereafter
- Weighing up a range of factors, including:
- Whether the deceased left burial wishes and whether they were followed.
- Circumstances surrounding the death.
- The deceased’s ties to the current burial location.
- The applicant’s role in the original burial arrangements.
- Time elapsed since death and condition of remains.
- Any opposition to the application and reasons for it.
- Whether the exhumation can be done respectfully and safely.
- Suitability of the proposed new burial site.
- Whether interference with Article 8 rights is justified and proportionate.
In allowing the appeal, the Court found favour in the applicant’s desire to seek a final resting place for the deceased in Monaco with her parents. The application was not seen as merely an attempt to disturb sacred remains for convenience.
Looking Ahead: Possible Changes in the Law
The Burial and Cremation (Scotland) Act 2016 gives Scottish Ministers the power to pass regulations concerning exhumation. As of October 2025, they have not exercised these powers.
The Act’s intention was to remove exhumation from the court process in some circumstances, allowing Inspectors or other specified persons to decide on applications.
While simplifying the process and reducing costs is welcome, it remains to be seen:-
- What the terms of any regulations will be; and
- How any non-court body could carry out the necessary balancing exercise between human rights and foundational principles.
Exhumation remains a complex area of law and potentially subject to change. We strongly recommend seeking legal advice before beginning any court process.
How We Can Help
At Thorntons, we understand that exhumation is not just a legal matter—it’s a deeply personal one. Our team has experience successfully guiding families through this process, including appearing in court and liaising with cemetery administrators and funeral directors.
We offer:-
- Compassionate legal advice tailored to your situation;
- Clear guidance on the steps involved and what to expect;
- Professional representation in court, if required;
- Support with documentation, including the Summary Application and Certificate of Feasibility; and
- Ongoing communication with all parties involved.
Whether you’re just beginning to explore this option or are ready to take the next step, please contact Partner Michael Wells on 0131 240 8653 or Ian Sargison on 0131 561 5098 to arrange a confidential meeting.
We will listen to your concerns, explain the legal process, and help you make informed decisions with dignity and care.
