LOSING THE FAMILY PLOT

ROB TOMLINSON5 October 2004

THE PURCHASE of a burial plot in a cemetery has traditionally brought generations of families peace of mind about where, and with whom, they will finally be laid to rest. But the recent legal wranglings of one family has sounded a cautionary note about the way in which Scots law is applied when it comes to the ownership of a plot. The family bought a double plot - or "lair", as it is known technically - in Invernessshire in 1963, following the death of the father. In June this year, his wife died and she was duly buried in the same plot. In her will, she specified that her eldest daughter would have control over any alterations to the gravestone. But she did not make a point of bequeathing ownership of the lair itself to anyone. So, when her eldest daughter wanted to erect a replacement headstone, complete with her mothers name, the local authority insisted she could not make alterations without first establishing ownership of the lair in line with the Succession Scotland Act (1964). The daughter has been unable to do so, although her mother had paid for the plot 40 years previously and owned it until her death. After hiring a lawyer, the family has finally been granted permission to erect a replacement stone bearing the mothers name alongside the fathers, but the local authority has refused to accept that the family now owns the burial plot. "I have turned my back on getting ownership of the lair that my mother bought," says the daughter, who wishes to remain anonymous. "It is in limbo. If a proper will is left behind then the ownership of a family burial plot should be automatic." The family has had similar problems over an upgrade to the grandparents aging headstone in the same cemetery. It needs the written permission of a large number of grandchildren, who are spread across the globe. "It seems that depending on where you live in Scotland, you get a different interpretation of this law," says the eldest daughter. "In other local authority areas, making alterations to a headstone and ownership of the plot would not be an issue, providing a normal will has been left. I just want to make more people aware of these potential difficulties and let them know that proper ownership of plots needs to be established before a death, otherwise they could run into the difficulties I have encountered," she adds. "There needs to be more uniformity in the way the local authorities interpret the law." PROFESSOR Michael Meston of Aberdeen University, an authority on the Succession Scotland Act, said he had not encountered such a situation before and believes it may be down to one local authoritys interpretation. "These matters are normally swept up in a residue clause of a will and dealt with in that way," he says. Because of the familys wish to remain anonymous, Highland Council has not been able to comment on the specifics of the case but a spokeswoman says that relatives are generally asked to provide proof of ownership to avoid the problems created by family feuds or disagreements. "Our officers have come across horror stories in the past where someone has been buried in a particular plot and other members of the family have objected perhaps because of a longstanding feud," she says. "That is why we try to establish ownership.