Crofters (Scotland) Act 1993

Succession to croft S

10 Bequest of croft. S

[F1 (1) A crofter may, by will or other testamentary writing, ]

[F2 (a) bequeath the tenancy of the whole of the crofter's croft to any one natural person; or

(b) bequeath the tenancy of that croft to two or more natural persons provided that—

(i) each person would come into the place of the crofter in relation to the tenancy of part of the croft; and

(ii) no part of the croft would, were all the bequests accepted, be untenanted.]

[F3 (2) A person to whom the tenancy of a croft (or of part of a croft) is bequeathed (in this section, the “legatee”) must, if the legatee accepts the bequest—

(a) give notice of the bequest to the landlord; and

(b) send a copy of the notice to the Commission,

before the end of the period of 12 months beginning with the death of the crofter.]

[F4 (2A) Notice under subsection (2) above of the bequest may be given by an executor of the deceased crofter authorised for that purpose by the legatee.

[F5 (2B) The giving of notice to the landlord in accordance with the provisions of subsection (2) or (2A) above shall import acceptance of the bequest; and the legatee if—

(a) he is a member of the deceased crofter's family; or

(b) he is a person other than a member of the deceased crofter's family and the landlord does not intimate objection to the legatee in accordance with subsection (3) below,

shall come into the place of the deceased crofter (as from the date of death of the deceased crofter) on the relevant date mentioned in subsection (2D) below.

(2C) Where notice is given in accordance with the provisions of subsection (2) or (2A) above and—

(a) the legatee is a member of the deceased crofter's family, the Commission shall notify the legatee of the information they require for the purpose of updating the Register of Crofts in relation to the tenancy; or

(b) the legatee is a person other than a member of the deceased crofter's family and the Commission receive no intimation of objection to the legatee in accordance with subsection (3) below, they shall notify the legatee—

(i) to that effect; and

(ii) of the information referred to in paragraph (a) above.

(2D) The Commission shall notify the legatee when they are satisfied that he has provided the information required by them in their notification to him under subsection (2C) above; and the “relevant date” referred to in subsection (2B) above is the date on which the Commission notify the legatee under this subsection.]

[F6 (3) Where the legatee is a person other than a member of the deceased crofter's family, the landlord may, within one month (or such longer period as may be determined by the Commission on an application made to them by the landlord) after the date of the notice given to him in accordance with subsection (2) or (2A) above, intimate to—

(a) the legatee; and

(b) the Commission,

that he objects to the legatee becoming tenant of the croft; and any such intimation shall state the grounds of objection.]

(4) If, after affording to the legatee and to the landlord an opportunity of making representations to them, the Commission are—

(a) satisfied that the objection is reasonable, they shall declare the bequest to be null and void, and shall notify the landlord and the legatee accordingly;

[F7 (b) not so satisfied, they shall—

(i) notify the landlord and the legatee to that effect; and

(ii) notify the legatee of the information they require for the purpose of updating the Register of Crofts in relation to the tenancy.]

[F8 (4A) In a case where subsection (4)(b) above applies, the Commission shall notify the legatee when they are satisfied that he has provided the information required by them in their notification to him under sub-paragraph (ii) of that subsection; and, if no appeal is made under subsection (4B) below against the Commission's decision under subsection (4)(b) above, the legatee shall come into the place of the deceased crofter (as from the date of the deceased crofter's death) on the date on which the Commission notify the legatee under this subsection.

(4B) The legatee or, as the case may be, the landlord may, within 42 days after the giving of notification of the Commission's decision under paragraph (a) or (b) of subsection (4) above in relation to the objection, appeal by way of stated case, on one or more of the grounds mentioned in section 52A(3) of this Act, to the Land Court against that decision.

(4C) In an appeal under subsection (4B) above the Court may—

(a) confirm the decision;

(b) direct the Commission to come to a different decision; or

(c) remit the case to the Commission without so directing them.

(4D) Where, on an appeal under subsection (4B) above, the Land Court directs the Commission to decide that a bequest under subsection (1) above be upheld, the legatee shall come into the place of the deceased crofter (as from the date of the deceased crofter's death) on the date the Court directs under this subsection.]

(3) [F5 The bequest is null and void if—

(a) in the case of a bequest such as is mentioned in subsection (1)(a), no notice is given (and no copy sent) in accordance with subsection (2) or (2A);

(b) in the case of a bequest such as is mentioned in subsection (1)(b), any legatee fails to give notice (and send a copy) in accordance with subsection (2) or (2A).

(4) Where, in the case of a bequest as is mentioned in subsection (1)(a), notice is given (and a copy sent) in accordance with subsection (2) or (2A), the legatee comes into the place of the deceased crofter (as from the date of death of that crofter) on the relevant date of registration.

(4A) Where—

(a) a crofter bequeaths the tenancy of a croft as mentioned in subsection (1)(b); and

(b) each legatee gives notice (and sends a copy) in accordance with subsection (2) or (2A),

the deceased crofter's executor must apply to the Commission for consent under section 9 to divide the croft accordingly.

(4B) Where the Commission give their consent to the division of the croft under section 9, each legatee comes into the place of the deceased crofter in relation to that legatee's new croft (as from the date of death of that crofter) on the relevant date.

(4C) The bequest is null and void if—

(a) the Commission do not give their consent to the division of the croft under section 9; or

(b) such consent is given but an application for registration of the division is not made in accordance with subsection (3)(a) of that section.]

(4E) [F9 Subject to subsection (4EA),] A legatee who comes into the place of a deceased crofter in accordance with subsection [F10 (4) or, as the case may be, (4B)] above, in doing so—

(a) becomes liable for such debts of the deceased crofter's estate as are attributable to the tenancy; and

(b) shall, if requested to do so by the executor, pay the reasonable expenses necessarily and wholly incurred by the executor in relation to the administration and management of the tenancy during the period beginning with the date of the deceased crofter's death and ending immediately before the date when the legatee so comes into the place of the deceased crofter; and such expenses—

(i) shall, in the event of a dispute as to amount, be determined by the Land Court on the application of the executor or the legatee; and

(ii) shall not fall to be met from the deceased crofter's estate.

[F11 (4EA) Where, as a result of the Commission giving their consent to the division of the croft under section 9, two or more legatees come into the place of the deceased crofter, those legatees are jointly and severally liable for—

(a) the debts mentioned in subsection (4E)(a); and

(b) any expenses mentioned in subsection (4E)(b).]

(4F) Notwithstanding that a legatee comes into the place of the deceased crofter as mentioned in subsection (4E) above, the tenancy is an asset of the deceased crofter's estate, available along with the other assets of the estate to meet the other expenses of administration, and debts, of the estate; and any such legatee is liable to contribute to such expenses and debts accordingly.]

(5) If the bequest becomes null and void under this section, the right to the croft shall be treated as intestate estate of the deceased crofter in accordance with Part I of the 1964 Act.

(6) Subject to the foregoing provisions of this section, any question arising with respect to the validity or effect of the bequest shall be determined by any court having jurisdiction to determine the validity and effect of the whole testamentary writings of the deceased crofter.

Textual Amendments

F1 S. 10(1) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 13(2), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F2 Words in s. 10(1) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 49(2), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4 5(3))

F3 S. 10(2) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 49(3), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4 5(3))

F4 S. 10(2A)-(2D) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 13(4), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F5 S. 10(3)-(4C) substituted for s. 10(2B)-(4D)(1.10.2011 for specified purposes, 30.11.2012 in force in so far as not already in force) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 49(4), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4, 5(3)); S.S.I. 2012/288, art. 3(1)(b), (2), sch. 1 Pt. 2

F6 S. 10(3) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 13(5), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F7 S. 10(4)(b) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 13(6), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F8 S. 10(4A)-(4F) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 13(7), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F9 Words in s. 10(4E) inserted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 49(5)(a), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4 5(3))

F10 Words in s. 10(4E) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 49(5)(b), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4 5(3))

F11 S. 10(4EA) inserted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 49(6), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with arts. 4 5(3))

11 Intestacy. S

(1) Where, owing to the failure of a crofter to bequeath the tenancy of his croft or of such a bequest to receive effect, the right to the tenancy of the croft falls to be treated as intestate estate of the deceased crofter in accordance with Part I of the 1964 Act, and the tenancy is transferred in pursuance of section 16(2) of that Act, the executor of the deceased crofter shall as soon as may be [F12 give notice of the transfer containing] particulars of the transferee to the landlord, who shall accept the transferee as tenant; and [F13 at the same time as giving the notice the executor must send a copy of the notice to the Commission] .

(2) If at the expiry of a period of [F14 24] months commencing with the relevant date the executor has not [F15 given the landlord any notice] in accordance with subsection (1) above, the landlord shall forthwith notify the Commission to that effect.

(3) In this section “the relevant date” means—

F16 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) where the deceased crofter has F17 ... failed to bequeath the tenancy, [F18 the date (no later than 2 months after the date of death of the deceased crofter) on which the Commission receive notification of the death or, where no such notification is received,] the date of death of the deceased crofter;

(c) where the deceased crofter has bequeathed the tenancy and the bequest has become null and void under section [F19 10] of this Act, the date on which the bequest became null and void as aforesaid;

F20 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F21 (4) If at the expiry of the period of [F22 24] months referred to in subsection (2) above, it appears to the Commission (whether from notification under that subsection or otherwise) that the executor has not [F23 given the landlord any notice] in accordance with subsection (1) above, they shall give notice in such manner as they think proper, whether by advertisement or otherwise—

(a) to the landlord;

(b) if an executor is confirmed in respect of the intestate estate of the deceased crofter, to the executor; and

(c) if no executor is so confirmed, to each person of whom the Commission are aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,

that they propose to terminate the tenancy and declare the croft vacant and inviting the recipients of the notice to make representations as respects the proposal to the Commission before the expiry of the period of one month after the date of the notice.

(5) If, having considered representations (if any) made to them in accordance with subsection (4) above, the Commission are satisfied that—

(a) the landlord or the executor has terminated the tenancy in accordance with section 16(3)(b) of the Succession (Scotland) Act 1964;

(b) the executor is proposing to transfer the tenancy; or

(c) a person is entitled to a transfer of the tenancy in or towards the satisfaction of his claim to prior rights or his entitlement to succeed to the deceased's intestate estate,

they are not to implement their proposal; but if not so satisfied they may implement their proposal if they consider it appropriate to do so.

(6) If, by virtue of subsection (5) above, the Commission are not entitled to implement their proposal, but it appears to them subsequently (by means of representations made to them or otherwise) that the tenancy is not being transferred or is unable to be transferred, the Commission may give notice again as mentioned in subsection (4) above.

(7) If, having considered representations (if any) made to them in accordance with subsection (4) above as respects a proposal contained in a notice given by virtue of subsection (6) above, the Commission are satisfied that it is appropriate to implement their proposal they may do so.

(8) Where the Commission, in pursuance of this section, declare the croft vacant—

(a) they shall give notice to that effect—

(i) to the landlord;

(ii) if an executor is confirmed in respect of the intestate estate of the deceased crofter, to the executor; and

(iii) if no executor is so confirmed, to each person of whom the Commission is aware and who the Commission consider may claim to be entitled to claim prior or legal rights out of, or to succeed to, the intestate estate,

and any such notice to the landlord shall require him to submit to them [F24 , before the expiry of the period of 4 months beginning with the day on which the notice is given,] such proposals as are mentioned in section 23(5) of this Act;

(b) any right of any person in, or in relation to, the tenancy shall be extinguished; and

(c) the landlord shall be liable to pay to the executor of the deceased crofter the value of the permanent improvements on the croft in so far as—

(i) the improvement is suitable to the croft;

(ii) the improvement was executed or paid for by the deceased crofter or by any of the predecessors of the deceased crofter in the tenancy; and

(iii) either the improvement was executed otherwise than in pursuance of a specific agreement in writing under which the deceased crofter was bound to execute the improvement or, if the improvement was executed in pursuance of such an agreement, the deceased crofter did not receive and his executor has not received, by way of reduction of rent or otherwise, fair consideration for the improvement.]

F25 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) [F26 In subsection (8)(c) above, the expression “the value of the permanent] improvements on the croft” means such sum as may be agreed, or as, failing agreement, may be determined by the Land Court, to be the sum which would have been due by the landlord by way of compensation for permanent improvements if the deceased crofter had immediately before his death renounced his tenancy.

(11) Where—

(a) a croft has been declared under [F27 this section] to be vacant consequent on the death after 27th August 1961 of a crofter who immediately before his death was qualified as mentioned in subsection (12) below; and

(b) the value of the improvements on the croft is determined by the Land Court under subsection (10) above,

the executor of the crofter may request the Land Court to determine what would have been the value of the improvements on the croft if the M1 Crofters (Scotland) Act 1961 had not been passed; and if the value last mentioned is greater than the value determined by the Land Court under subsection (10) above, the difference between the two said values shall be payable to the executor by the Secretary of State:

Provided that the Secretary of State shall be entitled to set off any amount due to him by the crofter at the date of his death in respect of a loan made under section 42(4) or (5) of this Act, section 22(2) or (3) of the 1955 Act or section 7(7) or 9 of the M2 Small Landholders (Scotland) Act 1911 against any sum payable to the executor by the Secretary of State under this subsection.

(12) The reference in subsection (11) above to a crofter who immediately before his death was qualified is a reference to a crofter—

(a) whose tenancy of the croft in question began before 27th August 1961, or

(b) who held the tenancy of such croft as statutory successor to his immediate predecessor in the tenancy and each of whose predecessors (being in each case a person whose tenancy of the croft began after 27th August 1961) held such tenancy as statutory successor to his immediate predecessor.

Textual Amendments

F12 Words in s. 11(1) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(10)(a)(i) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F13 Words in s. 11(1) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(10)(a)(ii) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F14 Word in s. 11(2) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(10)(c)(i) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F15 Words in s. 11(2) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(10)(c)(ii) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F16 S. 11(3)(a) repealed (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(3)(a), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F17 Word in s. 11(3)(b) repealed (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(3)(b)(i), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F18 Words in s. 11(3)(b) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(3)(b)(ii), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F19 Word in s. 11(3)(c) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(10)(d)(i) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F20 S. 11(3)(d) repealed (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(10)(d)(ii) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F21 S. 11(4)-(8) substituted for s. 11(4)-(9) (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(4), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F22 Word in s. 11(4) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(10)(e)(i) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F23 Words in s. 11(4) substituted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), s. 57(2), sch. 4 para. 3(10)(e)(ii) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F24 Words in s. 11(8)(a) inserted (1.10.2011) by Crofting Reform (Scotland) Act 2010 (asp 14), ss. 44(2), 57(2) (with s. 57(4)); S.S.I. 2011/334, art. 3, sch. Pt. 1 (with art. 4)

F25 S. 11(4)-(8) substituted for s. 11(4)-(9) (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(4), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F26 Words in s. 11(10) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(5), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

F27 Words in s. 11(11)(a) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 17(6), 43(3) (with ss. 40, 43(2)); S.S.I. 2007/568, art. 2

Marginal Citations

M1 1961 c. 58.

M2 1911 c. 49.