When someone dies, many people assume any funeral wishes included in the deceased’s Will determines how matters will proceed. But contrary to popular belief, such expressions are not legally binding and may not always be followed.
This article forms part of a series on funeral wishes in Scots Law and focuses on how to most effectively guide and assist those left behind.
When taking instructions for a Will, the focus is generally on the distribution of assets, tax efficiency and the appointment of Executors. It can be easy to overlook one immediate and emotionally charged issue following a death: who decides what happens to the deceased’s body? Many people, understandably, find it difficult to think about death itself, let alone their own funeral arrangements or what will happen to them physically when they die. As a result, funeral wishes are often left unspoken or undocumented, even though these decisions arise straight away and can place significant emotional pressure on those left behind.
Many people assume that this decision is left with the family members automatically, or that their spouse will decide, and in theory, this may be the case, but from a legal point of view, it is not a given. Some clients believe that stating their wishes in their Will makes them legally binding. Unfortunately, in Scotland, the reality is a little more nuanced.
Understanding how funeral wishes work in tandem with Scots Law helps avoid disagreement and uncertainty later down the line at what is an already difficult time.
Where do I record my wishes?
If you have funeral or burial preferences or wishes, however small they may be, it is important they are recorded somewhere. The easiest way to do this is through your Will, however your wishes can also be recorded in a ‘Letter of Wish’, which accompanies the Will. The Letter of Wish is typically used to record the finer details of your wishes, such as:
- Burial or cremation
- Religious or non‑religious services
- Location of burial or ashes
- Requests for simplicity, sustainability, or personal touches
- Music
- Catering
- Undertaker
The Executor’s role
The Executor of the Will can help to arrange and organise the funeral alongside family members, in line with the deceased’s wishes as recorded in their Will or Letter of Wish. In practice, most Executors work closely with family to make arrangements, and in many cases, the Executors and the family members are one and the same.
Where the deceased has left clear wishes, this offers the Executors both guidance and reassurance when exercising their discretion. They must balance a number of competing considerations: the expectations of family members, cultural or religious factors, and, most importantly, any funeral wishes left by the deceased.
Funeral wishes and their legal status
In Scotland, although funeral wishes are morally and personally significant, they are not yet strictly enforceable as a matter of law. This means that your Executors are not bound to follow your funeral/burial wishes as per your Will or Letter of Wish.
Funeral wishes expressed in a Scottish Will are generally drafted as an expression of preference rather than as a direction. This reflects the reality that circumstances at the time of death may make certain requests impractical, unaffordable or unlawful. As a result, Executors are not strictly compelled to follow them.
That said, funeral wishes are not legally insignificant. Executors are expected to take them into account and would ordinarily be criticised for disregarding them without good reason. In contentious situations, for example, where family members disagree on burial versus cremation, written funeral wishes by the deceased can carry considerable weight and help defuse disputes.
So, whilst funeral wishes are not legally binding regardless of where they are recorded, it is still important that they are in fact recorded, either through your Will or a Letter of Wish.
How Thorntons can help you
At Thorntons, we recognise that conversations about death and funeral arrangements are rarely easy, and many people prefer not to dwell on them at all. Our role is to make that process as straightforward and sensitive as possible, whether by helping clients record funeral wishes as part of their estate planning or by guiding families and Executors through the practical and legal decisions that arise immediately after a death. By providing clear advice at what is often an emotionally difficult time, we aim to ease uncertainty, reduce the potential for disputes, and ensure that clients’ wishes are understood and respected.
If you are looking to put in place funeral wishes, or require advice as the Executor of an Estate, please contact us and we would be happy to help.
To find out more what happens when funeral wishes have not been expressed, visit: Who decides? What happens when funeral wishes are not expressed or recorded | Thorntons Solicitors
