How to describe myself in Scottish Law?

Reed_Richards

I am trying to apply for an Initial Writ to be an Executor Dative for a relative who died in Scotland.  His closest living relatives are children of his aunts and uncles (themselves now all deceased).  In my first attempt to obtain an Initial Writ I described myself as first cousin once removed to the deceased, which I am.  But I got the response:

"There is no dative appointment in the capacity of first cousin once removed"

I have scratched my head about this and the best idea I have come up with is that I should have described myself as "representative in succession to an uncle of the deceased", which I am.

In practical terms there is no difference but the succession law deals explicitly with aunts and uncles and their issue but there is no explicit mention of cousins.

Any thoughts or ideas?

  

buddy9

Reed_Richards said:

I am trying to apply for an Initial Writ to be an Executor Dative for a relative who died in Scotland.  His closest living relatives are children of his aunts and uncles (themselves now all deceased).  In my first attempt to obtain an Initial Writ I described myself as first cousin once removed to the deceased, which I am.  But I got the response:

"There is no dative appointment in the capacity of first cousin once removed"

I have scratched my head about this and the best idea I have come up with is that I should have described myself as "representative in succession to an uncle of the deceased", which I am.

In practical terms there is no difference but the succession law deals explicitly with aunts and uncles and their issue but there is no explicit mention of cousins.

Any thoughts or ideas?

  

Are you a child of an uncle of the deceased?

Can you post a redacted copy of the writ which bounced?

Reed_Richards

I'm a grandson of an uncle of the deceased but my parents are also deceased.

The writ which bounced begins:

"The Pursuer craves the Court

To decern the Pursuer executor-dative qua first cousin once removed to the deceased ....."

And I got a reply to the effect that a first cousin once removed is not a qualifying relationship for a dative appointment, which of course isn't true in fact but must be true in legal phraseology.

buddy9

While the decription needs to be changed, the whole content of the writ is important and specific. It would be useful if you could include the full redacted text.

Reed_Richards

This is the revised version I intend to re-submit (with names, dates and places redacted).  I have changed and simplified point 4 and below added "by the principle of representation in succession" to hammer home the point.  Points 1, 2 & 3 are the same as the original version

The Pursuer craves the Court:-

 To decern the Pursuer executor–dative qua representative in succession of an uncle to the deceased Person A who died at address redacted Edinburgh postcode redacted

 CONDESCENDENCE

1.​ The said Person A died intestate at full address redacted on date redacted.    He had at the time of his death his ordinary or principal domicile in the Sheriffdom of Lothian and Borders in Scotland.

2. The said Person A died unmarried and did not enter into a civil partnership.

3.​ The said Person A was not survived by issue, however remote; he was not survived by his mother, nor his father, and he had no brothers nor sisters.

 4. The said Person A was not survived by any aunt nor any uncle but was survived by issue of his aunts and uncles.  The Pursuer is the grandson and the eldest living descendant of Person B, uncle and predecessor to the said Person A.
   
  Accordingly, the Pursuer is entitled by the principle of representation in succession to a share of the intestate estate.

 PLEA-IN-LAW

 The Pursuer having right to or share in the intestate estate of the said Person A, is entitled to be decerned his Executor-Dative.​​​

Reed_Richards

Hmm.  Now I'm wondering if I should state explicitly that my mother, who was the daughter of person B, uncle to the deceased, is likewise deceased.  You can work it out but the law doesn't seem to like to do that.

buddy9

I think that using representation would only be relevant if your parent had died after person A. And presumably, only one of your parents was a cousin.

I presume that the estate is greater than the small estate threshold of £36,000. 

If you are later applying for Confirmation, the court will likely require you to obtain a bond of caution at that stage.

The text book writ examples go no further than cousin, below is a suggestion for you to consider based on my understanding. You would need to check that the content is an accurate description and complete or delete as appropriate.

The Pursuer craves the Court:-

To decern the Pursuer executor–dative qua child of a predeceasing cousin of the full blood to the deceased Person A who resided at address redacted Edinburgh postcode redacted

 CONDESCENDENCE

1.​The said Person A died intestate at full address redacted on date redacted. He had at the time of his death his ordinary or principal domicile in the sheriffdom of Lothian and Borders in Scotland.

2. The said Person A died unmarried and without entering into a civil partnership.

3.​The said Person A was not survived by issue, however remote; nor by any brother or sister of the full blood or half blood; nor by his mother or father; nor by any uncle or aunt of the full blood. 

 4. The said Person A was survived by cousins of the full blood and children of predeceasing cousins of the full blood.  

5. The pursuer is a child of a cousin of the full blood of the said Person A, being a son of person K who was a daughter of Person L who was a brother/sister of the full blood of person G, the father/mother of the said Person A. The said person K predeceased the said Person A. Accordingly, the pursuer, along with cousins of the full blood and other descendents of predeceasing cousins of the full blood, has right to the intestate estate of the said Person A. 

 PLEA-IN-LAW

 The Pursuer having right to share in the intestate estate of the said Person A, is entitled to be decerned his Executor-Dative.​​​

Reed_Richards

Thanks, but I am nervous about using the term "cousin" if "first cousin once removed" is unacceptable, which it was.  A first cousin once removed is a type of cousin, after all.  How confident are you that the person who wrote the text book you refer to actually knew for sure that cousin was a suitable term?

Also, I originally wrote:

4. The said Person A was not survived by any aunt nor any uncle but was survived by issue of his aunts and uncles.  The Pursuer is the grandson of Person B, brother of Person C married name (born Person C birth name, the mother of the said Person A.  The Pursuer was not survived by his mother, Person D birth name, daughter of Person B. 

But that get's really complicated and I am trying to explain this to someone who seemingly doesn't understand that a first cousin once removed is a type of cousin.  So I thought maybe I should name as few people as possible.     

Looking online, there is a list of the branches of succession but that list excludes familial relationships such as nieces, nephews and cousins.  But the principle "There is representation in all branches of succession." must be applied.  So a (first) cousin, or a first cousin however many times removed, can be a representative on the Aunts and Uncles branch of succession when the aunt or uncle who would have inherited is dead.  Therefore I reasoned that I should give my relationship by reference to that aunt or uncle, an uncle to the deceased in my instance. 
 

buddy9

I am not aware of the terms 'first cousin' and 'first cousin' once removed being used in succession.

Here is a screenshot from an SCTS document which shows use of the word ‘cousin’.

Reed_Richards

Fair enough.  But does "cousin" necessarily mean first cousin, a child of one of your aunts or uncles?  In common parlance I could legitimately describe myself as a cousin to the deceased.  

Savvy_Sue

@buddy9 is certainly one of our most prolific posters on the subject of Confirmation, and he gives his time and expertise freely. None of us knows from whence his knowledge and expertise come, but he doesn't claim to be infallible.

I'd say your choice is to follow buddy's advice, complicated though it seems, or go for the only kind of advice you can rely on, which you'd have to pay for.

Personally my mind was blown by his suggested wording!