Commissary cases excluded from digital court changes

Winding up of estates of those who have died will not benefit from the provisions in the Coronavirus (Scotland) Act allowing electronic signature and submission of court documents, at least in the short term. 

The Lord President, Lord Carloway, has used powers given to him in sched 4 to the Act to direct that documents relating to commissary business are to be excluded from being signed or transmitted in this manner (click here to view). These include, but are not limited to, confirmation applications, petitions for appointment of executor dative and bonds of caution. At present the principal will, where there is one, has to submitted with applications for confirmation, and that will continue to be the case.

The direction means that estates where an executor has not already been confirmed in office will not be able to be progressed until the courts begin accepting paper applications again. However the direction states that a solicitor or applicant who considers a commissary application is a matter of particular urgency, can request that the matter be considered by a member of the judiciary.

It adds: "We do acknowledge that commissary business is a priority for customers, therefore consideration is being given to the processes that might be put in place to enable certain commissary applications to be lodged and processed including by electronic means.

"This direction ensures that the implications of enabling electronic transmission (such as the specific requirements for subscription of testamentary writings applied by the Requirements of Writing (Scotland) Act 1995) can be properly considered before implementing such electronic acceptance."