Harper Macleod LLP
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12 Contributions by Harper Macleod LLP Experts
PRACTICE NOTES
FORTHCOMING CHANGE :
On 30 January 2024, the Trusts and Succession (Scotland) Act 2024 obtained Royal Assent, representing the first review of Scottish trusts law in more than a century since the principal Trusts (Scotland) Act 1921 was enacted. The trusts provisions will require secondary legislation from Scottish Ministers before they commence, whereas the succession provisions took effect on 30 April 2024.
Key changes intended to modernise the law are outlined in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes addressing Scottish trusts and succession will be updated as required to reflect this new legislation.
This Practice Note explains the procedure for obtaining confirmation in Scotland for testate estates, in scenarios both where no inheritance tax (IHT) is payable and where IHT is due. For guidance on confirmation in intestate estates, see Practice Note: Application for confirmation in
Private Client
PRACTICE NOTES
FORTHCOMING CHANGE :
The Trusts and Succession (Scotland) Act 2024 secured Royal Assent on 30 January 2024, heralding the first overhaul of Scottish trust law in more than a century since the cornerstone Trusts (Scotland) Act 1921. Provisions on trusts will only commence once Scottish Ministers introduce the necessary secondary legislation, while the succession measures took effect on 30 April 2024. Key updates designed to modernise the framework are outlined in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes across Scottish trusts and succession topics will be revised to reflect this new statute.
This Practice Note addresses the steps for obtaining confirmation where there is no will (intestate estates). For wills-based estates, or elements of the confirmation process common to both testate and intestate cases, see Practice Note: Application for confirmation in Scotland—testate
Private Client
PRACTICE NOTES
ARCHIVED:
This Practice Note is archived and is not maintained. For alternative further reading, see Practice Note: Judicial review in Scotland—raising a claim. In Scotland, any application for judicial review must be made, in the prescribed form, to the Court of Session. The Courts Reform (Scotland) Act 2014 (CR(S)A 2014) ushered in an entirely new procedure for judicial review proceedings in Scotland. Sections 27A–27D of the Court of Session Act 1988 (CSA 1988) introduced new time limits and a requirement to obtain the Court’s permission before applying. Chapter 58 of the Court of Session Rules was fully rewritten in 2015, reforming all applications to the court’s supervisory jurisdiction in Scotland, which must proceed by petition for judicial review. The key procedural stages and the corresponding Court of Session Rules are as follows:
Petition — Rules 58.3–58.5
Responding to the petition — Rule 58.6
Public Law
PRACTICE NOTES
ARCHIVED: This Practice Note is archived and not maintained. For alternative further reading, see Practice Note: Judicial review in Scotland.
Background to judicial review in Scotland
Judicial review is the mechanism through which the courts oversee the use of state power. It has evolved to guarantee that public authorities, wielding legislative or decision-making functions, act only within the limits of the powers granted. The Human Rights Act 1998 (HRA 1998) broadened the traditional reach of judicial review to cover situations in which a public authority fails to respect an individual’s human rights. Under the HRA 1998, every public body must observe the rights secured by the European Convention on Human Rights, and proceedings for judicial review can be brought to enforce that obligation. For further information, see: Dealing with a human rights challenge. Decision-makers must not only exercise their powers properly as
Public Law
PRACTICE NOTES
Debt Arrangement Scheme (DAS)
The Debt Arrangement Scheme (DAS) is a statutory mechanism enabling eligible debtors to clear what they owe over a longer timeframe through a Debt Payment Programme (DPP). It is intended to help specified categories of debtor repay liabilities over an extended period via a structured DPP. While a DPP remains in place, creditors are barred from taking enforcement action against the debtor. For definitions of frequently used Scottish insolvency terminology, refer to Practice Note: Glossary of Scottish insolvency words and expressions. The legislative foundation for DAS sits in Part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002 (DAA(S)A 2002). That Act sets only the overarching framework within which the scheme functions. The operative detail appears in secondary legislation made under DAA(S)A 2002. Chiefly, this comprises the Debt Arrangement Scheme (Scotland) Regulations 2011 (DAS(S)R 2011), SSI 2011/141, as amended by the Debt
Restructuring & Insolvency
PRACTICE NOTES
For many years, debtors have relied upon trust deeds in order to reach a compromise with their creditors as an alternative to formal sequestration in Scotland (see Practice Note: Scotland: the process for applying for sequestration).
Rooted in the common law, trust deeds long attracted a relatively ‘light touch’ from the courts, but the law now pays closer attention to them and to this field generally today.
Accordingly, trust deeds are presently subject to markedly tighter regulation than previously in Scotland.
This Practice Note outlines the key legal principles on trust deeds and the process for obtaining, and the effect of, protected status in this context too.
For definitions of frequently used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions therein.
The Scottish government has announced a commitment to review both formal debt recovery
Restructuring & Insolvency
PRACTICE NOTES
The debtor's home in sequestration
In most sequestration cases where a debtor holds assets, these often include the debtor’s home (see Practice Note: Scotland: the process for applying for sequestration). Frequently, it is the sole asset owned by the debtor, either outright or jointly with another, typically a spouse or partner. For definitions of regularly used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. The trustee is obliged to realise that interest so it can be shared among the debtor’s creditors. Trustees generally wish to avoid the disruption and cost of removing debtors and their families, followed by the marketing and sale of their homes. They therefore usually prefer the debtor, or a third party, to purchase the trustee’s interest and will, where feasible, seek dialogue with the debtor to determine whether such an offer may arise. In many
Restructuring & Insolvency
PRACTICE NOTES
FORTHCOMING CHANGE
The Trusts and Succession (Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first reassessment of Scottish trusts law in more than a century since the Trusts (Scotland) Act 1921. The trusts provisions will come into force only following secondary legislation made by the Scottish Ministers, whereas the succession elements commenced on 30 April 2024. The principal updates modernising the law are outlined in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be further revised to reflect this new statute. This Practice Note outlines the Scots law requirements for a Will to be formally valid and the conditions that must be satisfied to give effect to a Will. For general guidance on Wills under Scots law, see Practice Note: Wills in
Private Client
PRACTICE NOTES
Public sector equality duty (PSED)
The public sector equality duty (PSED), as articulated in Part 11 of the Equality Act 2010 (EqA 2010), consists of a general equality duty—the core obligation—supported by specific duties intended to aid delivery of the general duty. With Scotland as the focus in particular, this Practice Note explores how the specific duties oblige public bodies to conduct a range of assessments and to report on assorted information. It sets out, in practice, how those specific duties encourage transparency and accountability to service users for decisions, ensuring equality objectives remain prominent in the minds of decision-makers. It should be borne in mind that the specific duties do not supplant the general PSED—public bodies subject to the specific duties must still also adhere to the PSED. Indeed, within the Scottish regime, the intention is for the specific duties to support and
Public Law
PRACTICE NOTES
This Practice Note explores the changes to succession law introduced by the Succession (Scotland) Act 2016 (S(S)A 2016). It provides information on every section of S(S)A 2016 and comments on its effect on the position of the law prior to its enactment. It also notes how those provisions interact with the prior legal position.
Effect of divorce, dissolution or annulment on Will—S(S)A 2016, s 1
Where a marriage or civil partnership ends by divorce, dissolution or annulment, any gift or power of appointment conferred by a testator on a former spouse or civil partner, together with any designation of that person as executor or trustee, is revoked. For this to take effect, the deceased must die after the decree of divorce, dissolution or annulment has been obtained and after 1 November 2016. This will not apply where the Will expressly stipulates that the above
Private Client
PRACTICE NOTES
FORTHCOMING CHANGE :
On 30 January 2024, the Trusts and Succession (Scotland) Act 2024 obtained Royal Assent, signalling the first comprehensive review of Scottish trust law in more than a century since the principal Trusts (Scotland) Act 1921. The trust-related provisions will not operate until secondary legislation is made by the Scottish Ministers, while the succession elements took effect on 30 April 2024. The chief reforms aimed at modernising the law are outlined in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes covering Scottish trusts and succession will be further updated to align with this new legislation.
CORONAVIRUS (COVID-19) :
Certain formal requirements for creating a valid Will in Scotland have been eased since the coronavirus pandemic. See News Analysis: Signing Wills in Scotland in times of social distancing.
Making a Will
On death, it must be determined whether a valid Will exists. If there is none, the
Private Client
CHECKLISTS
ARCHIVED: This Checklist has been archived is not maintained.
In Scotland, application for Judicial Review must be submitted, using the prescribed format, to the Court of Session. This Checklist outlines the principal procedural steps and the relevant time limits for judicial review in Scotland, consistent with Chapter 58 of the Rules of the Court of Session. Note: time limits may differ. The Court of Session Rules invite the court to allow extensions to time limits where the Lord Ordinary is persuaded that a longer period is required...
Public Law
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