(1)Subject to subsection (3) of this section the enactments and rules of law in force immediately before the commencement of this Act with respect to the administration and winding up of the estate of a deceased person so far as consisting of moveable property shall have effect (as modified by the provisions of this Act) in relation to the whole of the estate without distinction between moveable property and heritable property; and accordingly on the death of any person (whether testate or intestate) every part of his estate (whether consisting of moveable property or heritable property) falling to be administered under the law of Scotland shall, by virtue of confirmation thereto, vest for the purposes of administration in the executor thereby confirmed and shall be administered and disposed of according to law by such executor.
(2)Provision shall be made by the Court of Session by act of sederunt made under the enactments mentioned in section 22 of this Act (as extended by that section) for the inclusion in the confirmation of an executor, by reference to an appended inventory or otherwise, of a description, in such form as may be so provided, of any heritable property forming part of the estate.
(3)Nothing in this section shall be taken to alter any rule of law whereby any particular debt of a deceased person falls to be paid out of any particular part of his estate.
Modifications etc. (not altering text)
C1S. 14(2) amended by Administration of Estates Act 1971 (c. 25), s. 6(2)
(1)Section 5(2) of the M1Conveyancing (Scotland) Act 1924 (which provides that a confirmation which includes a heritable security shall be a valid title to the debt thereby secured) shall have effect as if any reference therein to a heritable security, or to a debt secured by a heritable security, included a reference to any interest in heritable property which has vested in an executor in pursuance of the last foregoing section by virtue of a confirmation:
Provided that a confirmation [F1(other than an implied confirmation within the meaning of the said section 5(2))] shall not be deemed for the purposes of the said section 5(2) to include any such interest unless a description of the property, in accordance with any act of sederunt such as is mentioned in subsection (2) of the last foregoing section, is included or referred to in the confirmation.
(2)Where in pursuance of the last foregoing section any heritable property has vested in an executor by virtue of a confirmation, and it is necessary for him in distributing the estate to transfer that property—
(a)to any person in satisfaction of a claim to legal rights or the prior rights of a surviving spouse [F2or civil partner] out of the estate, or
(b)to any person entitled to share in the estate by virtue of this Act, or
(c)to any person entitled to take the said property under any testamentary disposition of the deceased,
the executor may effect such transfer by endorsing on the confirmation (or where a certificate of confirmation relating to the property has been issued in pursuance of any act of sederunt, on the certificate) a docket in favour of that person in the form set out in Schedule 1 to this Act, or in a form as nearly as may be to the like effect, and any such docket may be specified as a midcouple or link in title in any deduction of title; but this section shall not be construed as prejudicing the competence of any other mode of transfer.
Textual Amendments
F1Words inserted retrospectively by Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 (c. 70), s. 19
F2Words in s. 15(2)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263(10)(c), Sch. 28 para. 7; S.S.I. 2005/604, {art. (2(c)}
Marginal Citations
(1)This section applies to any interest, being the interest of a tenant under a lease, which is comprised in the estate of a deceased person and has accordingly vested in the deceased’s executor by virtue of section 14 of this Act; and in the following provisions of this section “interest” means an interest to which this section applies.
(2)[F4Subject to subsection (4A),] where an interest—
(a)is not the subject of a valid bequest by the deceased, or
(b)is the subject of such a bequest, but the bequest is not accepted by the legatee, or
(c)being an interest under an agricultural lease, is the subject of such a bequest, but the bequest is declared null and void in pursuance of section 16 of the Act of 1886 or [F5[F6section 12A or 12B] of the 1991 Act] [F7or becomes null and void under section 10 of the Act of 1955,]
and there is among the conditions of the lease (whether expressly or by implication) a condition prohibiting assignation of the interest, the executor shall be entitled, [F8subject to subsection (2A) of this section, to transfer the interest.]
[F9(2A)Transfer by an executor pursuant to subsection (2) of this section—
(a)F10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)of an interest under any [F11lease (other than [F12the lease of a 1991 Act tenancy or] the lease of a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1993 (c.44))] and which is not a transfer to one of the persons entitled to succeed to the deceased's intestate estate or to claim legal rights or the prior rights of a surviving spouse or civil partner out of the estate, in satisfaction of that person's entitlement or claim, shall require the consent of the landlord.]
(3)[F13Subject to subsection (4C),] if in the case of any interest—
(a)at any time the executor is satisfied that the interest cannot be disposed of according to law and so informs the landlord, or
(b)[F14subject to subsection (3A)] the interest is not so disposed of within a period of one year or such longer period as may be fixed by agreement between the landlord and the executor or, failing agreement, by the [F15relevant court on the application of] the executor—
(i)in the case of an interest under an agricultural lease which is the subject of a petition to the Land Court under section 16 of the Act of 1886 [F16, an application under section 12A of the 1991 Act or an appeal under section 12B of that Act to that court], from the date of the determination or withdrawal of the petition [F17, the application or, as the case may be, the appeal ],
[F18(ia)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ib)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
(ii)in any other case, from the date of death of the deceased,
either the landlord or the executor may, on giving notice in accordance with the next following subsection to the other, terminate the lease (in so far as it relates to the interest) notwithstanding any provision therein, or any enactment or rule of law, to the contrary effect.
[F21(3A)In the case of an interest in an agricultural lease which is a lease of a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1993 (c.44), the period for the purposes of subsection (3)(b) is 24 months.]
(4)The period of notice given under the last foregoing subsection shall be—
(a)in the case of an agricultural lease, such period as may be agreed, or, failing agreement, a period of not less than one year and not more than two years ending with such term of Whitsunday or Martinmas as may be specified in the notice; and
(b)in the case of any other lease, a period of six months:
Provided that paragraph (b) of this subsection shall be without prejudice to any enactment prescribing a shorter period of notice in relation to the lease in question.
[F22(4A)Where an interest, being an interest under a lease constituting a short limited duration tenancy [F23, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] —
(a)is not the subject of a valid bequest by the deceased; or
(b)is the subject of such a bequest, but the bequest is not accepted by the legatee; or
(c)is the subject of such a bequest, but the bequest is declared null and void by virtue of section 21 of the 2003 Act,
and there is among the conditions of the lease (whether expressly or by implication) a condition prohibiting assignation of the interest, the executor shall be entitled, notwithstanding that condition, to transfer the interest to a person to whom subsection (4B) below applies; and the executor shall be entitled so to transfer the interest without the consent of the landlord.
(4B)This subsection applies to—
(a)any one of the persons entitled to succeed to the deceased’s intestate estate, or to claim legal rights or the prior rights of a surviving spouse out of the estate, in or towards satisfaction of that person’s entitlement or claim; or
(b)any other person.
(4C)In the case of any interest under a lease constituting a short limited duration tenancy [F24, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] —
(a)if at any time the executor is satisfied that the interest cannot be disposed of according to law and so informs the landlord, the executor may terminate the tenancy (in so far as it relates to the interest); and
(b)if the interest is not so disposed of within the period referred to in subsection (4D) below, the lease shall (in so far as it relates to the interest) terminate at the expiry of the period,
notwithstanding any provision in the lease, or any enactment or rule of law, to the contrary effect.
(4D)The period is one year or such longer period as may be fixed by agreement or, failing agreement, by the Land Court on the application of the executor—
(a)in the case of an interest which is the subject of an application to that court by virtue of section 21 of the 2003 Act, from the date of the determination or withdrawal of the application; and
(b)in any other case, from the date of death of the deceased.
(4E)The—
(a)interest may be transferred under subsections (4A) and (4B) above; or
(b)tenancy may be terminated under subsection (4C)(a) above,
only if the transfer, or as the case may be, termination is in the best interests of the deceased’s estate.]
(5)Subsection (3) of this section shall not prejudice any claim by any party to the lease for compensation or damages in respect of the termination of the lease (or any rights under it) in pursuance of that subsection; but any award of compensation or damages in respect of such termination at the instance of the executor shall be enforceable only against the estate of the deceased and not against the executor personally.
(6)Where an interest is an interest under an agricultural lease, and—
(a)an application is made under section 3 of the Act of 1931 [F25or section 13 of the Act of 1955] to the Land Court for an order for removal, or
(b)a reference is made under [F26section 23(2) and (3) of the 1991 Act] [F27for the determination of] any question which has arisen under [F26section 22(2)(e)] of that Act in connection with a notice to quit,
the [F28order or determination shall not be] in favour of the landlord, unless F29. . . it is reasonable, having regard to the fact that the interest is vested in the executor in his capacity as executor, that it should be made.
(7)Where an interest is not an interest under an agricultural lease, and the landlord brings an action of removing against the executor in respect of a breach of a condition of the lease, the court shall not grant decree in the action unless it is satisfied that the condition alleged to have been breached is one which it is reasonable to expect the executor to have observed, having regard to the fact that the interest is vested in him in his capacity as an executor.
(8)Where an interest is an interest under an agricultural lease and is the subject of a valid bequest by the deceased, the fact that the interest is vested in the executor under the said section 14 shall not prevent the operation, in relation to the legatee, of paragraphs (a) to (h) of section 16 of the Act of 1886 [F30, sections 11(8), 12A and 12B of the 1991 Act,] section 21(2) and (3) of the 2003 Act, [F31 or, as the case may be, subsection (2) to (7) of section 10 of the Act of 1955].
[F32(8A)For the purposes of subsection (3)(b) above, the “relevant court” is—
(a)in the case of an interest under a lease constituting a 1991 Act tenancy, the Land Court; and
(b)in any other case, the sheriff,
and an application to the sheriff in any such other case shall be by summary application.]
(9)In this section—
“agricultural lease” means a lease of a holding within the meaning of the Small Landholders (Scotland) Acts 1886 to 1931 [F33, or a lease of a croft within the meaning of section 3(1) of the [F34Crofters (Scotland) Act 1993 (or of any part of a croft if it is a part consisting of a right mentioned in section 3(4)(a) of that Act)], or a lease constituting a 1991 Act tenancy, or a lease constituting a short limited duration tenancy [F35, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy]] ;
“the Act of 1886” means the M2Crofters Holdings (Scotland) Act 1886;
“the Act of 1931” means the M3Small Landholders and Agricultural Holdings (Scotland) Act 1931;
[F36 “the 1991 Act” means the Agricultural Holdings (Scotland) Act 1991;]
[F37“the 2003 Act” means the Agricultural Holdings (Scotland) Act 2003 (asp 11);]
[F38“the Act of 1955” means the M4Crofters (Scotland) Act 1955;]
“lease” includes tenancy;
[F39“1991 Act tenancy”, “short limited duration tenancy” [F40, “limited duration tenancy”, “modern limited duration tenancy” and “repairing tenancy”] shall be construed in accordance with the 2003 Act.]]
Textual Amendments
F3S. 16 is set out as it has effect in accordance with Law Reform (Miscellaneous Provisions) Act 1968 (c. 70), s. 8, and as subsequently amended
F4Words in s. 16(2) inserted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(a) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F5Words in s. 16(2)(c) and s. 16(3)(b)(i) substituted (25.9.1991) by Agricultural Holdings (Scotland) Act 1991 (c. 55, SIF 2:3), ss. 88(1), 89(2), Sch. 11 para. 24(a) (with s. 45(3), Sch. 12 para. 3)
F6Words in s. 16(2)(c) substituted (23.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 14(2)(a) (with s. 128); S.S.I. 2016/365, reg. 2, sch. (with regs. 5-8)
F7Words added by Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 (c. 70), s. 8, Sch. 2 Pt. I para. 22(a)
F8Words in s. 16(2) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 15(2), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2
F9S. 16(2A) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 15(3), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2
F10S. 16(2A)(a) and word repealed (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 55, 57(2)(3), Sch. 4 para. 2(2)(a)(i) (with s. 57(4)); S.S.I. 2011/334, art. 3(1)(a), Sch.
F11Words in s. 16(2A)(b) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 55, 57(2)(3), Sch. 4 para. 2(2)(a)(ii) (with s. 57(4)); S.S.I. 2011/334, art. 3(1)(a), Sch.
F12Words in s. 16(2A)(b) inserted (23.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 14(2)(b) (with s. 128); S.S.I. 2016/365, reg. 2, sch. (with regs. 5-8)
F13Words in s. 16(3) inserted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(b)(i) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F14Words in s. 16(3)(b) inserted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 55, 57(2)(3), Sch. 4 para. 2(2)(b)(i) (with s. 57(4)); S.S.I. 2011/334, art. 3(1)(a), Sch.
F15Words in s. 16(3)(b) substituted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(b)(ii) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F16Words in s. 16(3)(b)(i) substituted (23.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 14(2)(c)(i) (with s. 128); S.S.I. 2016/365, reg. 2, sch. (with regs. 5-8)
F17Words in s. 16(3)(b)(i) substituted (23.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 14(2)(c)(ii) (with s. 128); S.S.I. 2016/365, reg. 2, sch. (with regs. 5-8)
F18S. 16(3)(b)(ia)(ib) added by Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 (c. 70), s. 8, Sch. 2 Pt. I para. 23
F19S. 16(3)(b)(ia) repealed (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 42, 43(3), Sch. 2 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2
F20S. 16(3)(b)(ib) repealed (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 55, 57(2)(3), Sch. 4 para. 2(2)(b)(ii) (with s. 57(4)); S.S.I. 2011/334, art. 3(1)(a), Sch.
F21S. 16(3A) inserted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 55, 57(2)(3), Sch. 4 para. 2(2)(c) (with s. 57(4)); S.S.I. 2011/334, art. 3(1)(a), Sch.
F22S. 16(4A)-(4E) inserted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 20, 95(3)(4) (with s. 95(2)); S.S.I. 2003/548, art. 2(a) (with art. 3, Sch.)
F23Words in s. 16(4A) substituted (30.11.2017) by Land Reform (Scotland) Act 2016 (asp 18), ss. 108(1)(a), 130(1) (with s. 128); S.S.I. 2017/299, reg. 2, sch. (with reg. 7)
F24Words in s. 16(4C) substituted (30.11.2017) by Land Reform (Scotland) Act 2016 (asp 18), ss. 108(1)(b), 130(1) (with s. 128); S.S.I. 2017/299, reg. 2, sch. (with reg. 7)
F25Words inserted by Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 (c. 70), s. 8 Sch. 2 Pt. I para. 24
F26Words in s. 16(6)(b) substituted (25.9.1991) by Agricultural Holdings (Scotland) Act 1991 (c. 55, SIF 2:3), ss. 88(1), 89(2), Sch. 11 para. 24(b) (with s. 45(3), Sch. 12 para. 3)
F27Words in s. 16(6) substituted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(c)(i) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F28Words in s. 16(6) substituted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(c)(ii) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F29Words in s. 16(6) repealed (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(c)(iii) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F30Words in s. 16(8) substituted (23.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 14(2)(d) (with s. 128); S.S.I. 2016/365, reg. 2, sch. (with regs. 5-8)
F31Words added by Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 (c. 70), s. 8, Sch. 2 Pt. I para. 25
F32Words in s. 16(8A) inserted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(e) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F33S. 19(9): words in definition of "agricultural lease" substituted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(f)(i) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F34Words in s. 16(9) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 15(4), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2
F35Words in s. 16(9) substituted (30.11.2017) by Land Reform (Scotland) Act 2016 (asp 18), ss. 108(1)(c)(i), 130(1) (with s. 128); S.S.I. 2017/299, reg. 2, sch. (with reg. 7)
F36S. 16(9): definition of "the 1991 Act" substituted (25.9.1991) for definition of "the Act of 1949" by Agricultural Holdings (Scotland) Act 1991 (c. 55, SIF 2:3), ss. 88(1), 89(2), Sch. 11 para. 24(d)(ii) (with s. 45(3), Sch. 12 para. 3)
F37S. 16(9): definition of "the 2003 Act" inserted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(f)(ii) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F38S. 16(9): definition of "the Act of 1955" added by Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 (c. 70), s. 8, Sch. 2 Pt. I para. 26(b)
F39S. 16(9): definition of "1991 Act tenancy" inserted (27.11.2003) by Agricultural Holdings (Scotland) Act 2003 (asp 11), ss. 94, 95(3)(4), Sch. para. 2(1)(f)(iii) (with s. 95(2)); S.S.I. 2003/548, art. 2(i) (with art. 3, Sch.)
F40Words in s. 16(9) substituted (30.11.2017) by Land Reform (Scotland) Act 2016 (asp 18), ss. 108(1)(c)(ii), 130(1) (with s. 128); S.S.I. 2017/299, reg. 2, sch. (with reg. 7)
Marginal Citations
F42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
Textual Amendments
F41S. 16A inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 16, 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2
F42S. 16A repealed (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 55, 57(2)(3), Sch. 4 para. 2(3) (with s. 57(4)); S.S.I. 2011/334, art. 3(1)(a), Sch.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F43S. 17 repealed (1.11.2016) by Succession (Scotland) Act 2016 (asp 7), s. 31(2), sch. para. 1(5)(a); S.S.I. 2016/210, reg. 2(1)(b) (with reg. 3(4))
F44(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)On the death of a person entitled to any heritable property subject to a special destination in favour of some other person, being a destination which the deceased could not competently have, or in fact has not, evacuated by testamentary disposition or otherwise, the property shall, if the executor of the deceased is confirmed thereto, vest in the executor for the purpose of enabling it to be conveyed to the person next entitled thereto under the destination (if such conveyance is necessary) and for that purpose only.
(3)Section 14(2) of this Act shall apply in relation to property to which this section refers as it applies to property to which the said section 14(2) refers.
(4)Sections 15 and 17 of this Act shall apply to property which has vested in an executor by virtue of this section as they apply to property which has vested in an executor by virtue of section 14 of this Act, as if the person next entitled to the first mentioned property were a person entitled to share in the estate of the deceased.
Textual Amendments
F44S. 18(1) repealed (28.11.2004) by 2000 asp 5, ss. 76(2), 77(4), Sch. 13 Pt. 1 (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2
(1)The executor of a deceased person shall be accountable for all estate duty which may become leviable or payable on the death of the deceased in respect of heritable property which vests in such executor.
(2)For the purpose of raising the duty and the expenses of so doing, the executor shall have all the powers which are by any enactment conferred for raising the duty.
(3)Nothing in this Act shall alter any duty payable in respect of heritable property or impose any new duty thereon or affect the remedies of the Commissioners of Inland Revenue against any person or property.
(4)Nothing in this Act shall be held to require the payment of estate duty on any estate or any part of an estate at a date earlier than the date on which such payment would have been exigible if this Act had not passed.
(5)Notwithstanding that any estate duty is by this Act made payable by the executor, nothing in this Act shall affect the liability of the persons beneficially interested or their respective interests in respect of any duty and they shall accordingly account for or repay the duty and any interest and expenses attributable thereto to the Commissioners of Inland Revenue or to the executor, as the case may require.
(6)Nothing in this section shall impose on the executor as such any liability for payment of duty in excess of the assets (including any heritable property) which shall for the time being be available in his hand for the payment of the duty or which would have been so available but for his own neglect or default.
(7)The Commissioners of Inland Revenue, on being satisfied that the executor or other person accountable has paid or commuted or will pay or commute all estate duty for which he is accountable in respect of the heritable property vested in him or any part thereof, shall, if required by him, give a certificate to that effect, which shall discharge from any further claim for estate duty the property to which the certificate extends.]
Textual Amendments
F45Ss. 19, 22(4) repealed in relation to deaths occurring after 13.4.1975 and, so far as regards certain duties in relation to any death, by Finance Act 1975 (c. 7, SIF 99:3), ss. 52(2), 59, Sch. 13 Pt. I, note (with a saving in s. 52(3) in relation to repayment or allowance in respect of certain sums paid before 13.3.1975 on account)
An executor dative appointed to administer the estate of a deceased person shall have in his administration of such estate the whole powers, privileges and immunities, and be subject to the same obligations, limitations and restrictions, which gratuitous trustees have, or are subject to, under any enactment or under common law, and the M5 Trusts (Scotland) Acts 1921 and M61961 shall have effect as if any reference therein to a trustee included a reference to such an executor dative:
Provided that nothing in this section shall exempt an executor dative from finding caution for his intromissions or confer upon him any power to resign or to assume new trustees.
Notwithstanding any rule of law or practice to the contrary, confirmation of an executor to property disposed of in a holograph testamentary disposition shall not be granted unless the court is satisfied by evidence consisting at least of an affidavit by each of two persons that the writing and signature of the disposition are in the handwriting of the testator.
[F46(2)This section shall not apply to a testamentary document executed after the commencement of the Requirements of Writing (Scotland) Act 1995.]
Textual Amendments
F46S. 21(2) added (1.8.1995) by 1995 c. 7, ss. 14(1), 15(2), Sch. 4 para. 38 (with ss. 9(3)(5)(7), 13, 14(3))
Confirmation of an executor to property disposed of in a testamentary document executed after the commencement of the Requirements of Writing (Scotland) Act 1995 shall not be granted unless the formal validity of the document is governed—
(a)by Scots law and the document is presumed under section 3 or 4 of that Act to have been subscribed [F48or under section 9C or 9D (or by virtue of section 9E(1)) of that Act to have been authenticated] by the granter so disposing of that property; or
(b)by a law other than Scots law and the court is satisfied that the document is formally valid according to the law governing such validity.]
Textual Amendments
F47S. 21A inserted (1.8.1995) by 1995 c. 7, ss. 14(1), 15(2), Sch. 4 para. 39 (with ss. 9(3)(5)(7), 13, 14(3))
F48Words in s. 21A(a) inserted (8.12.2014) by Land Registration etc. (Scotland) Act 2012 (asp 5), ss. 122, 123, Sch. 5 para. 14 (with s. 121, Sch. 4 paras. 13, 16) (as amended by S.S.I. 2014/346, arts. 1(2), 3); S.S.I. 2014/127, art. 2
(1)The powers exercisable by the Court of Session by act of sederunt under section 18 of the M7Confirmation of Executors (Scotland) Act 1858, section 16 of the M8 Sheriff Courts and Legal Officers (Scotland) Act 1927 and section 34 of the M9Administration of Justice (Scotland) Act 1933 (which empower the court to regulateinter aliaprocedure in proceedings in the sheriff court and in proceedings for the confirmation of executors) shall include power to regulate the procedure to be followed, and to prescribe the form and content of any petition, writ or other document to be used, in connection with the confirmation of executors in cases where, by virtue of this Act, heritable property devolves upon the executor.
(2)Without prejudice to the generality of the powers conferred on the court by the said sections and by this section, the power conferred by the said section 34 to modify, amend or repeal by act of sederunt enactments relating to certain matters shall include power so to modify, amend or repeal any enactment relating to the procedure to be followed in proceedings for the confirmation of executors in such cases as aforesaid.
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F49
[F50(4)Nothing in the foregoing provisions of this section shall affect the power conferred by section 8(14) of the Finance Act 1894 or otherwise on the Commissioners of Inland Revenue to prescribe the form of, or the particulars to be contained in, affidavits and other documents used for the purposes of Part I of that Act.]
Textual Amendments
F49S. 22(3) repealed by Law Reform (Miscellaneous Provisions)(Scotland) Act 1966 (c. 19), Sch. Pt. I
F50Ss. 19, 22(4) repealed in relation to deaths occurring after 13.4.1975 and, so far as regards certain duties in relation to any death, by Finance Act 1975 (c. 7, SIF 99:3), ss. 52(2), 59, Sch. 13 Pt. I, note (with a saving in s. 52(3) in relation to repayment or allowance in respect of certain sums paid before 13.3.1975 on account)
Marginal Citations