Executor Dative - Scotland "Next of kin"

Reed_Richards

I am (again) trying to find the best way to describe myself in a petition to become an executor dative (Scottish law). My relative died intestate and all beneficiaries are descendants of aunts and uncles of the deceased; he was my mother's cousin . I have been reading an old copy of "The confirmation of executors in Scotland" which is available online and if I follow this I would describe myself as "next of kin" to the deceased in the first section then explain my familial relationship to the deceased only in the Condescendence section. I like this idea but it doesn't follow any modern example that I have found. Can anyone tell me if this form of wording is still accepted?

buddy9

https://forums.moneysavingexpert.com/discussion/6675388/executor-dative-scotland-next-of-kin

What did you do with the style which was suggested to you in July last year?

Reed_Richards

Some issues arose as to the solvency/value of the estate (which eventually reached a very positive resolution) so I had been awaiting that outcome. Therefore I did nothing for the last year. But I remain concerned that the judgements are being made by some clerk who won't follow the complexity of my relationship to the deceased. When I described myself as "first cousin once removed" my petition was rejected, presumably because whoever made the judgement could find no specific reference to such a relationship in their guide or textbook. But in this instance the closest living relatives to the deceased are descendants of his aunts and uncles, first cousins, first cousins once removed and first cousins twice removed; 15 of us in total.

Anyway, I found a textbook that uses "next of kin" before then going into more detail about the familial relationship, so if this wording is still acceptable it should get me over the first hurdle.

buddy9

I don’t think that it will be helpful to follow the practice in a 19th century book!

I suggest you use the style I suggested - and it might help the clerk to understand if you include a family tree.

Reed_Richards

The latest edition of the book was published in 2022 but the online copy I found was from 1923 so only just over 100 years old!

Are you allowed to include supporting documents like a family tree? My impression was that you had to get the entire petition onto one page.

Savvy_Sue

https://forums.moneysavingexpert.com/discussion/comment/82062014#Comment_82062014

I'd be surprised if buddy9 suggested including something you weren't supposed to.

buddy9

The petition is a stand alone document. A family tree could be an informal part of a cover letter.

Below is an example of a writ with made up names etc. You will want to check that I have understood the situation correctly. Item 6 of the Condescendence is an introduced addition and is not shown on the previously suggested style.

As previously mentioned, if you need a Grant of Confirmation then you will likely need to obtain a Bond of Caution at that stage.

buddy9

https://forums.moneysavingexpert.com/discussion/comment/82062014#Comment_82062014

A book published in 2022 is likely to be a reprint of the original version from 1884 because the latest edition of the book (9th edition) was published in 2011. The 4th edition was published in 1923 but I have never come across a piblically available online version of the 4th edition.

Reed_Richards

I'm sure @buddy9 is giving correct advice but my first attempt was factually correct but still rejected. So I am seeking whatever form of words gives the very best chance of success amongst the various correct possibilities.

You can see abbreviated petitions here https://civilonline.scotcourts.gov.uk/publishednotices#PetitionforAppointmentofExecutor but there are only four instances where "Trading name or representative capacity" is given. There is one "qua Relict", which is an archaic term for a widow, but no mention of a cousin at the present time.

FYI an online copy of "The confirmation of executors in Scotland according to the practice in the commissariot of Edinburgh" can be viewed here: https://archive.org/details/confirmationofex0000unse/page/240/mode/2up

This says it was published in 1923 and it must be a later edition that the original because Edinburg in the original has become Edinburgh in this edition. Abe Books would sell me a copy of this book published in 2022 https://www.abebooks.co.uk/Confirmation-Executors-Scotland-Practice-Commissariot-Edinburg/31386913184/bd

but the edition number is not stated. It's suspiciously cheap, so might be a reproduction of the original.

buddy9

If you think that your rejected application was factually correct, why not post a redacted version of it here for a second opinion.

You are correct about the 1923 book version. Thank you for the link.

The book published in 2022 and advertised for sale looks to be a reprint of a 19th century edition.

Reed_Richards

Below my rejected petition with names and addresses redacted. I now think the Condescendence section could be improved but the reason given for rejection was "There is no dative appointment in the capacity of first cousin once removed".

SHERIFFDOM of LOTHIAN AND BORDERS

INITIAL WRIT

for

Appointment of Executor-Dative

By

My name and address redacted

PURSUER

The Pursuer craves the Court:-

To decern the Pursuer executor–dative qua first cousin once removed to the deceased A who died at address redacted

CONDESCENDENCE

1. The said A died intestate at 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 A died unmarried and did not enter into a civil partnership.

3. The said 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 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 B, brother of C, the mother of the said A. The Pursuer was not survived by his mother D, daughter of B.

Accordingly, the Pursuer is entitled to a share of the intestate estate.

PLEA-IN-LAW

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

My name redacted

PURSUER