Confirmations could "swamp" courts, lawyer warns

Sheriff courts could be "swamped" with applications for confirmation as executors when they reopen for business, a legal firm has warned.

Law firm Aberdein Considine says the delays caused by the cessation of most sheriff court business, coupled with rising deaths due to COVID-19, could mean bereaved families being locked out of their loved ones' estates for months on end even when the courts reopen fully.

Until confirmation is granted by a sheriff, estates cannot be wound up and assets cannot be distributed to beneficiaries.

The Lord President, Lord Carloway, has directed that confirmation business is to be excluded from the types of case permitted to be submitted to the courts digitally under the Coronavirus (Scotland) Act 2020 (click here for report), but on Friday Scottish Courts & Tribunals Service indicated that it was working to restart commissary business through remote working (click here for report). Further information is expected this week.

James MacKinnon, a partner at Aberdein Considine, believes the backlog of applications will be "substantial".

"The closure of courts to all but essential business has halted the winding up of estates", he commented. "The backlog is already substantial and, sadly, will continue to grow as the tragic COVID-19 death toll increases.

"The delays could be even longer for people who died without leaving a will."

Aberdein Considine is urging families to proceed with estate administration to ensure that their case is among the first to be heard when the courts reopen.

Mr MacKinnon added: "A large part of the legal work around executry administration can still go ahead, despite the current restrictions.

"This include things like gathering a comprehensive inventory of all assets, including property, cash accounts, shareholdings, land, personal items of value, pensions, insurance policies, as well as details of any debts.

"And we understand that confirmation cases will be heard in the order that they are filed, once courts re-open to non-essential business. This means that the earlier a confirmation application is submitted, the more likely it is to be granted in a reasonable timeframe."