October 2016 – Executor Appointment Changes

Author: Mitchells Roberton
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  • Something was said about the new Succession (Scotland) Act 2016 in the Bullet Point Updates for February and March this year. This update focuses on one particular aspect of the changes concerning the procedures for the executors appointed under a Will being “confirmed” as such by the court.
  • Before saying more about the procedural changes flowing from the 2016 Act something needs to be said about the general requirement for executors to be “confirmed” by the court.

“Confirmation” of executors under a Will 

  • A Will normally names the people that the maker of the Will (“the Testator”) wishes to act as his or her “executors” i.e. those who are in overall charge of dealing with the administration (and distribution) of the Testator’s property following their death. For example, a Will might say: “I appoint my wife Mrs Jean Bloggs, residing with me, and our son James Bloggs, 4 Anytown Street, Blanktown, to be my executors.”
  • In order for the executors to proceed to act as such however they need to comply with various administrative requirements. In particular, they need list each asset owned by the Testator on an official form and answer a range of questions about the assets.
  • The official form is then sent to the sheriff court and, all being well, the court then issues an official document called “Confirmation” in favour of the executors. It is this “Confirmation” which entitles the executors to deal with the assets: for example, to uplift money from the Testator’s bank account or sell the Testator’s house and so on.

The provisions of the 2016 Act directly affecting the procedures involved 

  • Suppose, before the 2016 Act, Mr Bloggs had appointed executors as in the example above:

“I appoint my wife Mrs Jean Bloggs, residing with me, and our son James Bloggs, 4 Anytown Street, Blanktown, to be my executors.”

  • But suppose, before the 2016 Act, Mr and Mrs Bloggs get divorced. In that event would her appointment as his executor nevertheless have continued to have effect? In principle, the answer would be yes.
  • The 2016 Act now changes that with effect from 1st November this year: if Mr and Mrs Bloggs got divorced and then Mr Bloggs died survived by Mrs Bloggs she would, for these purposes, be treated as having predeceased him. So, her appointment as one of his executors would not have effect. The same result would apply in relation to any benefits given to Mrs Bloggs under the Will. This would be so unless Mr Bloggs’ Will expressly provided otherwise.

How does this affect the procedures for obtaining “Confirmation”?

  • When an executor applies to the sheriff court for Confirmation of the executors named under a Will the court must be satisfied that the correct people are being appointed. Part and parcel of that process involves the making of a declaration on the official form which is sent to the court on behalf of the executors.
  • The terms of that declaration will now need to accommodate the 2016 Act which, in particular, provides that a divorced spouse who has been appointed as executor under a Will is treated as having predeceased the testator.
  • Accordingly, the terms of the declaration by the executors will generally have to contain a statement setting out the relationship between the deceased and the applicant executor, and any other named executor, at the testator’s date of death.
  • Where any named executor fails as a result of divorce (or dissolution or annulment) by virtue of the 2016 Act, the declaration will need to spell that out.
  • So, using the above example, suppose Mr and Mrs Bloggs were divorced before his death; Mrs Bloggs survives; and so Mr Blogg’s son James alone was entitled to be appointed executor.
  • In that case James Bloggs would need to set out in his declaration, in the official form which he would send to the court, the fact of his parents being divorced.
  • He would also need to provide an official copy of the court document evidencing the divorce and make mention of that in his declaration. This would all be required so that the court could be satisfied that the correct person – and only the correct person – was being confirmed by the court as executor.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Bruce Battersby: Bruce@mitchells-roberton.co.uk

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