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Second thoughts on executor declarations

15 April 19

From the Professional Practice team: what is required in a declaration following the introduction of the Succession (Scotland) Act 2016?

by Antony McFadyen

The Trust & Succession Law Subcommittee of the Law Society of Scotland, and the Scottish Courts & Tribunals Service (SCTS), have had discussions regarding the requirements of an executor’s declaration in an application for confirmation, following the introduction of the Succession (Scotland) Act 2016.

In terms of s 1 of the Act, the court requires to be satisfied as to the extent of the relationship between the deceased and the executor, and as such SCTS issued guidance on this point which states that:

“Where an application for confirmation nominate (including an application in terms of s 3 of the Executors (Scotland) Act 1900) is received, that every declaration, other than those where a non-natural person is appointed as executor, will contain a statement setting out the relationship between the deceased and the applicant, and any other named executor, at the date of death.”

A Journal article produced by the Professional Practice team (January 2018, 42) provided some guidance on the styles that the Trust & Succession Law Subcommittee of the Society and SCTS had approved for use in the most common types of declarations. While those suggested styles remain valid and effective, it was also agreed that continual review of the styles would be carried out to allow the styles to reflect adequately the needs of our members.

Following the introduction of the legislation, situations have arisen whereby solicitors felt that they were being required to have certain family members provide declarations stating that they had never been married to or entered into a civil partnership with the deceased, even when such a situation would not have been legally possible. Examples of this type of situation would be when the proposed executor nominate was the son, daughter, brother, sister and so on of the deceased.

Given the awkwardness of that practice the Society entered into further discussions with SCTS and an agreement has been reached that in circumstances where the proposed executor nominate could never have been married to or entered into a civil partnership with the deceased, no declaration stating that that was the case would be required. 

In a situation where the proposed executor nominate could not have been in such a relationship with the deceased, what is required is a declaration outlining the familial relationship, and a proposed form of wording in the declaration that will be accepted by SCTS could commence is as follows: “That I am the son/daughter/brother/sister/niece/nephew etc and executor nominate of the said deceased”.

If there are other executors nominate appointed who could not have been married to or in civil partnership with the deceased because of their relationship, that should also be declared; and if there are other executors nominate appointed who could have been married to or in civil partnership with the deceased but were not, this requires to be declared in respect of them. 

Antony McFadyen is a senior solicitor in the Professional Practice team. Also from Professional Practice in this issue: “Client medical records: a matter of right”.
 

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