Where there is a Will, there is a way...

A recent case reported publicly was the legal dispute between the mother of a serving army soldier and his widow over his final resting place.

The soldier tragically died leaving a Will which appointed his mother as Executor and his widow as sole beneficiary.

However his Will did not make provision for any place of burial - this failure resulted in my Firm raising proceedings in the Sheriff Court on behalf of the deceased’s mother to secure the right to bury her son over his widow.

The case was presented in the form of his mother having the ranking right because she was named his Executor, i.e. someone named or appointed to administer the deceased’s estate and implement the Will.

The position in Scots law is still uncertain - in England it is the Executor who normally has priority in the event of a dispute over funeral arrangements as long as the Executor acts reasonably and considers the views and requirements of the deceased’s family members.

We attempted to persuade the Court that in this case the English position should also be adopted but we were unsuccessful.

The Sheriff held his widow as his next of kin, who therefore had the right to bury him and make the necessary funeral arrangements. Although an appeal was marked, the deceased’s mother was unable to proceed.

Her son was buried in a cemetery chosen by his widow and in her family lair. This dispute was traumatic and heartbreaking for mother and widow equally but they were unable to compromise and needed the Court to decide.

As a result the deceased was not finally laid to rest until after the third anniversary of his death. This court case and heartbreak could have been avoided - if only the deceased had written down his stated intention as to where he preferred to be buried.

Although he prepared a will, he left his loved ones with conflicting ideas of his preferred place of burial and they believed their version was his true intention.

In the end the Court had to decide following three days of difficult and emotional evidence from his family.

The court case has polarised the mother and her daughter in law even further.

Had he stated the place in his Will – although his nearest and dearest would have mourned him, they would have been spared the litigation and three year delay.

When making a Will and regardless of your age - instruct your solicitor to specify in it your intention, if you have one, as to your place of burial or cremation. A sombre thought I know, but an entirely sensible one in light of the uncertainty in law.

Do you have a question about anything covered in this article?

If so, please contact Rollos on 01334 654081.

Where there is a Will, there is a way...

Posted by Tony Anderson at 24/03/2015 08:05:15
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