How to describe myself in Scottish Law?

RAS

I'd at least go back with buddy's wording and see what happens.

None of us know where buddy's knowledge comes from but I'd suspect they've worked in this field for a long time. 

Given how precise and difficult wording Scottish applications is, this forum has become the best free source available AFAIK. We're very lucky to have them here and that they share their expertise.

The other option will be paid advice.

Reed_Richards

Yes, many apologies to @buddy9.  I'm being tetchy because I am certain that there was nothing factually wrong with my rejected submission.  I have a horrible suspicion that the person who rejected my writ is just referring to the same text book that @buddy9 uses. When they didn't find an example of "first cousin once removed" they rejected the writ without giving it sufficient thought.  It's very frustrating.        

Reed_Richards

buddy9 said:

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

I  missed this earlier.  I have no idea of the value of the estate and I don't seem to have any way of finding out without the authority that being executor dative would give me.  My relative was in a nursing home before he died and for all I know the nursing home fees may have consumed all his assets.  

buddy9

If the estate is no greater than £36,000 the small estates procedure can be used. With this procedure the court will complete the dative application and issue confirmation as a single exercise and an additional benefit is that a Bond of Caution would not be required. It is of course necessary to know the extent of the estate before the procedure could be used.

https://www.scotcourts.gov.uk/taking-action/dealing-with-a-deceaseds-estate-in-scotland/small-estates/

sheramber

buddy9 said:

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’.

The Law Society of Scotland use the term first cousin. 

https://www.lawscot.org.uk/members/journal/issues/vol-51-issue-07/executries-sponsored-feature/

Another stumbling block to the application for confirmation is the view widely held by practitioners that a member of a class of kin who benefits directly from the estate is preferred to someone who benefits by representation of a predeceasing parent, for example an uncle over a first cousin. In a small, known family this might not cause a problem, provided the older relative is in reasonable health. However, if you are in contact with surviving cousins but a large proportion of the family tree remains unknown, you cannot say with conviction that there are no surviving uncles and aunts.


Enquiry to one of the sheriff courts referred me to Currie on Confirmation of Executors (8th ed, 1996), which, in section 6.56, states: “Any person sharing in the deceased’s estate under the intestate succession rules may be decerned as executor-dative. Where there is competition for the office of executor-dative, between a person who inherits by virtue of representing a deceased parent, and someone who inherits in their own right, the latter will be preferred to the office.”

could the big in bold apply.

Are you applying as someone who inherits by virtue of representing a dead parent, not as a first cousin once removed , which does not seem to be recognised for direct inheritance. 

Reed_Richards

I am applying as someone who inherits by virtue of representing their dead parent who, were they alive, would inherit by virtue of representing their dead parent who, were they still alive, would have inherited a portion of the estate as uncle to the deceased.

I do know the entire family tree, indeed my deceased relative had compiled one some years ago and circulated copies of it to other relatives.  I am absolutely certain that all the aunts and uncles are deceased.  All that remains are (first) cousins, direct or at one or two removes.  If a first cousin, or indeed any other beneficiary, wanted to apply I would very gladly stand aside but AFAIK nobody does.

     

sheramber

Reed_Richards said:

I am applying as someone who inherits by virtue of representing their dead parent who, were they alive, would inherit by virtue of representing their dead parent who, were they still alive, would have inherited a portion of the estate as uncle to the deceased.

I do know the entire family tree, indeed my deceased relative had compiled one some years ago and circulated copies of it to other relatives.  I am absolutely certain that all the aunts and uncles are deceased.  All that remains are (first) cousins, direct or at one or two removes.  If a first cousin, or indeed any other beneficiary, wanted to apply I would very gladly stand aside but AFAIK nobody does.

     

so that is what you call yourself. , not first cousin  once removed.

Reed_Richards

I am grandchild of an uncle of the deceased, child of a cousin of the deceased, and thus first cousin once removed of the deceased.  They are all the same. 

My concern was that the order of succession chart used in Scottish law is:

  

and this does not explicitly mention cousins; in fact taken at face value cousins would never inherit.  But there is a principle that "there is representation in all branches of succession" meaning that if anyone on the tiers of the chart had children then the inheritance that would have been theirs is divided amongst their children, their grandchildren if those children are also dead and so on down to any living descendant.

I thought it might be better to describe myself with reference to a relative on the chart, an uncle, but @buddy9 favours describing myself with reference to my mother, who was cousin to the deceased.    

buddy9

For completeness, this (simplified) succession chart is out of date; it was amended in 2024, though the change does not affect the current situation.

The intestate succession hierarchy is listed in section 2 of the Succession (Scotland) Act 1964. 

https://www.legislation.gov.uk/ukpga/1964/41/section/2#commentary-key-3c3ee42f46bffdf6385ad90ce18acf16

Reed_Richards

Thank you, @buddy9; the internet often proves to be a reliable source of out-of-date information.  I see the amendment raises the husband, wife or civil partner up to second priority after the children so they now rank above siblings and parents.  I'm not sure why the previous ranking ever seemed fair, but I guess it did at the time.