Confirmation and the 2016 Act

In view of the impact of the changes brought about by the Succession (Scotland) Act 2016, in particular ss 1 and 2, SCTS wish to advise of our expectations in respect of applications for confirmation after the commencement of the Act on 1 November 2016. The new provisions apply to all deaths on or after that date.

Section 1 provides that where a testamentary writing has appointed a spouse or civil partner as executor (or as one of the executors) and/or leaves a bequest to such a person, and the marriage or civil partnership is then terminated by divorce, dissolution or annulment, the ex-spouse/civil partner is to be treated as predeceasing the deceased in any application for confirmation.

It also provides that the right to be executor nominate, or the right to benefit (which may affect the application of s 3 of the Executors (Scotland) Act 1900) is to continue in the event of divorce, dissolution or annulment if the testamentary writing makes that specific provision.

Following discussions with the commissary sheriff in Edinburgh, Sheriff Nigel Morrison, guidance has been issued to sheriff clerks advising that, in order to address the issues raised by the new Act, we expect:

• 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 professional body 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.
• Where any executor nominated jointly "fails", as a result of divorce, dissolution or annulment in terms of the Act, the declaration will make an averment to that effect.
• Where the person seeking appointment as executor is not the spouse or civil partner of the deceased, and is relying on the marriage or partnership having been terminated to set up their right to the appointment, the declaration shall make an averment to that effect and the relevant extracts shall be produced as signed, docqueted and referred to therein.

The declaration with such a statement included should provide sufficient information to the sheriff clerk to satisfy the requirement to ensure the appropriate person is applying for confirmation.

Section 2 deals with the issue of special destinations, which will require the solicitor to consider whether or not the special destination still applies to the property following divorce, dissolution or annulment of any marriage or civil partnership of the deceased, and, if not, to enter the property as an item of the estate in the inventory, to be included in the total to be confirmed.

I am of course happy to discuss any issues or concerns you may have in respect of applications to the sheriff for confirmation following the commencement of the Act.