Trusts and Succession (Scotland) Act 2024

80Amendment of Confirmation of Executors (Scotland) Act 1858

After section 6 of the Confirmation of Executors (Scotland) Act 1858, insert—

“6ARestrictions on appointment of executor dative

(1)This section applies where a sheriff is in receipt of a petition for the appointment of a person (“P”) as an executor dative in respect of the estate of a deceased person (“D”).

(2)The sheriff must refuse the petition if satisfied that P is a person falling within subsection (3).

(3)A person falls within this subsection if that person—

(a)is being prosecuted in Scotland for the murder or culpable homicide of D,

(b)has been convicted, whether before or after the coming into force of this section, in Scotland of such an offence as regards D,

(c)is being prosecuted in a jurisdiction outside Scotland for an offence which, in the opinion of the sheriff, is equivalent to the murder or culpable homicide of D, or

(d)has been convicted, whether before or after the coming into force of this section, in a jurisdiction outside Scotland of such an offence as regards D.

(4)For the purposes of subsection (3), a person is to be regarded as being prosecuted for an offence if—

(a)a prosecutor has initiated proceedings against the person in respect of the offence, and

(b)those proceedings have not been dismissed or resulted in the conviction or acquittal of the person in respect of the offence.

(5)If, despite subsection (1) or any rule of law to the contrary, a person falling within subsection (3) is appointed as an executor dative in respect of D’s estate—

(a)the person’s appointment as executor dative is not invalid by reason of the fact that the person falls within subsection (3), but

(b)the appointment does not prevent the removal of that person from office following the making of an application under section 7 of the Trusts and Succession (Scotland) Act 2024 (as read with section 8 of that Act) on the ground that the person is unfit to carry out the duties of a trustee.

(6)This section is without prejudice to any power of a sheriff to refuse a petition for the appointment of P in any case where—

(a)P does not fall within subsection (3), but

(b)P—

(i)has acted (or is suspected of having acted) in a manner that caused or contributed to the death of D, or

(ii)has otherwise been involved (or is suspected of having otherwise been involved) in the death of D.”.