Commentary on Sections Miscellaneous
145.Section 79 of the Act amends the Requirements of Writing (Scotland) Act 1995 (“the 1995 Act”), so as to clarify the way in which that Act applies to documents subscribed by trustees. It sets out the way in which a trust document is to be regarded as validly executed for the purposes of the 1995 Act. If trustees wish their document to be probative, which is necessary in certain situations, for example where it relates to land and is to be registered, the attestation requirements of section 3 of the 1995 Act may be followed.
146.Section 80 inserts a new section 6A into the Confirmation of Executors (Scotland) Act 1858. The inserted section requires a sheriff to refuse a petition for the appointment of a person as executor dative where the sheriff is satisfied that the person has been convicted of, or is being prosecuted for, the murder or culpable homicide of the deceased, or an equivalent offence in a different jurisdiction. Where a person is appointed as executor dative despite such a conviction or prosecution (for example, because relevant facts were not brought to the court’s attention), subsection (5) provides that the appointment is not invalid, but that there is no obstacle to the subsequent removal of the person from office by a court on an application under section 7, read with section 8, of the Act. Subsection (6) provides that the inserted section does not affect any power a sheriff may have to refuse a petition for appointment of an executor dative by reason of any other involvement or suspected involvement in the deceased’s death.