Grant of Confirmation

botros

Fantastic thread - thank you - absolutely invaluable in (hopefully) preventing the heartache of rejected applications.

Would really appreciate any comments and corrections on my proposed wording below.

One practical point, given the number of individuals mentioned in the will in my case, and the changes in circumstances since the will, if the boxes - particularly in the Declaration - are not big enough for the required wording, what is acceptable practice in terms of continuation?

Summary of my situation:

My dad passed recently. He and my mum lived 48 years near Edinburgh but moved to England in 2022 - where he died. He was English but the will was prepared in Scotland and does state domicile of Scotland. There are some Scottish-based assets (so "qualifies" for Confirmation in that regard). My mum, sister, brother and sister-in-law are named as executors (although I am doing the "legwork" now). My brother pre-deceased my dad. My sister-in-law will decline the role. The will gives the (previous) Edinburgh address for my dad and mum. The will gives a previous address for my brother and sister-in-law. My sister's current address matches the will thankfully. My mum will be the declarant.

Many thanks in anticipation!

MY PROPOSED WORDING...

Declaration:

1. Who declares that the deceased (full name)

[dad's name] residing sometime at [Edinburgh address] and latterly and finally residing at [England address]

domiciled in

The Sheriffdom of Lothian and Borders in Scotland

2. That I am

along with [my sister's name] residing at [my sister's current/will address] and [my sister-in-law's name] residing at [my sister-in-law's current address] are the executors nominate of said deceased conform to the will dated [date of will] which is herewith exhibited and docquetted and signed by me as relative hereto, and that I am the wife of the said deceased and the said [my sister's name] is the daughter of the said deceased and the said [my sister-in-law's name] is the daughter-in-law of the said deceased and has never been married to nor been in a civil partnership with the deceased.

In said will, [my brother's name] is also appointed executor nominate but said [my brother's name] pre-deceased the said deceased. Said [my brother's name] is the son of said deceased.

In said will, [my sister-in-law's name] is designed as residing at [address in will] a former address. The said [my sister-in-law's name] has declined to act as executor conform to letter of declinature dated [insert date], which letter of declinature is exhibited herewith and docquetted and signed by me as relative hereto.

In said will, the said deceased and I are designed as [address in will] a former address.

Letter of Declinature

I, [my sister-in-law's name], residing at [current address] and previously at [address in will] hereby decline the Office of Executor to which I was appointed by the Will of [dad's name] who resided at [dad's final address] and previously at [address in will] who died on [DOD], dated said will [date of will].

buddy9

Here is my understanding:

Domicile involves concepts of both residence and the intent to live permanently. For court purposes, domicile is normally associated with residence and the court will not accept ‘domiciled in a particular sheriffdom’ without having an address there.  So where it is considered that a person had a Scottish domicile though resident outwith Scotland, then the description  is ‘He had at the time of death no fixed or known domicile save that the same was in Scotland’. The pre-printed  words “domiciled in” being deleted.

The court can ask for the submission of a special warrant where an address does not support the declared domicile.

………………………….

If para 2 content is larger than the space, enter ‘see a paper apart’ there and print your entry on a separate sheet. Here is a suggestion  based on your draft.

2. That I am

along with [my sister's name] residing at [my sister's current/will address] the executors nominate of said deceased conform to the will dated [date of will], and that I am the wife of the said deceased and the said [my sister's name] is the daughter of the said deceased. In said will, [my brother's name] and [my sister-in-law's name ] are also appointed executors but the said [my brother's name] predeceased the said deceased and the said [my sister-in-law's name] has declined to act as executor conform to letter of declinature dated [insert date]. In said will, [my sister-in-law's name] is designed as residing at [address in will] a former address and the said deceased and I are designed as residing at [address in will] a former address. Said will and letter of declinature are herewith exhibited and docquetted and signed by me as relative hereto.

botros

Many thanks for your quick reply.
On the question of domicile and where the will was prepared...my reasoning had been that 1) even though my dad lived the last couple of year's in England and died there 2) the will was prepared by a Scottish solicitor to Scottish standards and is in fact not immediately valid in England (to with the number of witnesses) 3) so going for Confirmation rather than probate seemed like the line of least resistance and saving on solicitors fees in England to get the will "validated".      Maybe in my naivety, I had also thought that domicile did not necessarily change simply by moving to another country, i.e. it was quite "sticky" and would require the holder to explicitly change it. There must be countless cases where someone with a Scottish domicile is working/living abroad and dies.    Anyway, just wanted to ask you to confirm there definitely is precedent for dad's case?  And that our application is not bound to fail?
I have seen in Guidance Notes the text that you mention ("....no fixed or known domicile save that the same was in Scotland"), which also seems to say that such an application would HAVE to go to the Commissary Office in Edinburgh rather to a Sheriff Court. Does that sound right?
Thanks again.

botros

Sorry, and one more question @buddy9, can you expand a little what is mean by "a special warrant"? What would the warrant say? Is it something a solicitor has to prepare, or just an additional declaration prepared by the executor? Or something else?. Thanks

buddy9

Yes - HM Commissary in Edinburgh.

I don’t know what criteria the Commissary Office operate, but I suspect that a statement of domicile in the will along with the inclusion of the previous address might be persuasive.

The sheriff clerk (or commissary clerk) has authority to issue a Grant of Confirmation. As regards commissary, a special warrant is a process whereby the executor submits (or is asked to submit) an initial writ which requests the approval of the sheriff. The commissary special warrant procedure is principally used where there is an issue with a will or an executor nomination. It can be submitted without solicitor assistance if you know how to lay it out (which you could obtain on the forum).

withfingerscrossed

What a great find this forum is, lots of invaluable advice. 

My father died recently and the estate is fairly simple involving 50% of a very modest house (title to the other 50% of the home was transferred to me and my 2 siblings a little over 6 years ago) and a couple of bank accounts.  I am sole executor nominate. Even taking the 100% value of the house into account the whole estate still comes to less that £200k and therefore there is no question of IHT.  It seems clear to me that it comes within the definition of "excepted".  

Given the simple nature of the estate and the shocking amount charged a few years ago by solicitors to obtain probate in an even simpler estate I was involved with, I intend to apply for probate myself. 

My question concerns the wording of the will and the penultimate sentence which reads "And I nominate the firm of Ross Harper, Solicitors, .....(address)........to attend to the administration of the estate".  Notwithstanding that Ross Harper have been out of business for many years, and the original will is now held by another solicitor, can such a direction in the will simply be ignored by the executor nominate?

buddy9

withfingerscrossed said:

What a great find this forum is, lots of invaluable advice. 

My father died recently and the estate is fairly simple involving 50% of a very modest house (title to the other 50% of the home was transferred to me and my 2 siblings a little over 6 years ago) and a couple of bank accounts.  I am sole executor nominate. Even taking the 100% value of the house into account the whole estate still comes to less that £200k and therefore there is no question of IHT.  It seems clear to me that it comes within the definition of "excepted".  

Given the simple nature of the estate and the shocking amount charged a few years ago by solicitors to obtain probate in an even simpler estate I was involved with, I intend to apply for probate myself. 

My question concerns the wording of the will and the penultimate sentence which reads "And I nominate the firm of Ross Harper, Solicitors, .....(address)........to attend to the administration of the estate".  Notwithstanding that Ross Harper have been out of business for many years, and the original will is now held by another solicitor, can such a direction in the will simply be ignored by the executor nominate?

You will be applying for Confirmation as opposed to probate.

The reference to using a specific solicitor can safely be ignored.

Confusedexecutrix

@buddy9 would you mind taking a look at my Application under Conveyancing Act further to our previous  exchanges, Im fairly sure its just about there but would value your feedback?

withfingerscrossed

Thank you @buddy9.  Just to be clear, am I correct that I can apply for confirmation and administer the will (which includes several small bequests) without ever involving a solicitor at all?

buddy9

withfingerscrossed said:

Thank you @buddy9.  Just to be clear, am I correct that I can apply for confirmation and administer the will (which includes several small bequests) without ever involving a solicitor at all?

If the will is valid and you are the sole executor, then yes. But for the house conveyancing you should use a solicitor.