Many people have very strong and specific wishes as to the nature and conduct of their funeral but they won’t be around to know if those wishes are carried out.
Under the present law, the executors appointed under the Will have ownership of the body and are, technically, the decision makers for funeral arrangements. They are not obliged to follow any funeral wishes expressed in the Will.
In practice, the funeral is usually arranged by whoever chooses to step up to the plate and make arrangements. Sadly, in a fair number of cases, the decision as to who is to arrange the funeral and the form it is to take can be the subject of great contention and bring long held emotions and family divisions to the fore.
Recognising that, legally, a person with clear funeral wishes has no guarantee that they will be carried out, and mindful that lack of legal clarity can cause conflict, a recent report by the Law Commission recommends that expressed funeral wishes be made legally binding. Whether those recommendations become law remains to be seen.
What practical advice can be given in the meantime to give reassurance to people with clear funeral wishes that such wishes will be respected? Essentially, the best you can do is to make your wishes known to the right persons.
We generally advise against including detailed funeral wishes in the Will. A simple expression of whether you wish to be buried or cremated is sufficient; the detail is better left to a conversation with appropriate members of the family.
Whilst it is no substitute to making your wishes known in person, a separate letter of wishes to your executors is a useful record. A letter of wishes is not binding, but the advantage of a letter of wishes is that it does not need to take any particular form. It can simply be signed by you and updated as and when you want; unlike expressing wishes in a Will, which may entail rewriting your will should your wishes change. The letter of wishes should be kept with your Will and a copy should be given to those close to you and those you would expect to deal with your funeral arrangements when the time comes.
There is much to be said in favour of the Law Commission’s assertion that the law should be changed. To many people, for religious, emotional, or even environmental reasons, the form and conduct of their funeral is very important. We recall one Will (not drafted by us) where the funeral wishes took up three pages and the bequests just half a page. In some cases, making funeral wishes binding might also have the benefit of denying some families the opportunity to use the funeral issue as a means of settling old scores.
Please contact a member of the Private Client team should you wish to discuss any of the issues raised.