Lynsey Morgan recently acted for the successful pursuer in an action brought under the Burial and Cremation (Scotland) Act 2016.

Section 65 of the Act applies where an adult dies and has not made arrangements to what should happen to their remains.

The pursuer was the former cohabitant of the deceased. The defender was the deceased’s brother. The action arose as parties disputed who the “nearest relative” of the deceased was, and who was therefore entitled to make decisions relating to his burial arrangements.

Section 65(2) provides that the deceased’s nearest relative may make arrangements for their remains.

The pursuer sought declarator that she was the “nearest relative” in terms of Section 65(3)(b) of the 2016 Act, namely that she “was living with the adult as if they were married to each other and had been so living for a period of at least 6 months”. This ranked her pursuer above the defender as nearest relative.

The defender disputed the pursuer’s claim on the basis that whilst the pursuer and deceased may have been in a relationship, it could not be said they were living as though married to each other as, inter alia, they each maintained their own separate dwellings.

The court accepted the evidence of the pursuer and her witnesses as to nature of her relationship with the deceased. The sheriff acknowledged that whilst there were features in the pursuer and deceased’s relationship not traditionally found in marriage, including their retaining of separate dwellings and a lack of combing finances, this reflected their age and maturity when the relationship had commenced. It was not indicative of a casual relationship.

Decree was granted in the pursuer’s favour.

https://www.scotcourts.gov.uk/media/3brhyrdc/2026scinv55-dp-against-br.pdf