An Act for the relief of Widows and Children of Intestates in Scotland where the Personal Estate is of small value.
[19th July 1875]
Modifications etc. (not altering text)
C1Act amended by Small Testate Estates (Scotland) Act 1876 (c. 24), s. 6; extended to intestates who have died domiciled furth of Scotland by Customs and Inland Revenue Act 1881 (c. 12), s. 34
C2Functions of Commissary Courts and Commissary Clerks in Scotland (except Commissary Clerk of Edinburgh) now exercisable by Sheriffs and Sheriff Clerks: Sheriff Courts (Scotland) Act 1876 (c. 70), ss. 35-39, 54, Sheriff Courts and Legal Officers (Scotland) Act 1927 (c. 35), ss. 10, 11(1) and S.R. & O. 1933/1089 (1933, p. 520)
C3Preamble omitted under authority of Statute Law Revision (No. 2) Act 1893 (c. 54)
C4Words of enactment repealed by Statute Law Revision (No. 2) Act 1893 (c. 54)
C5Confirmation of Executors (Scotland) Act cited or referred to by its short title under authority of Statute Law Revision Act 1893 (c. 14), s. 3
This Act may be cited for all purposes as The Intestates Widows and Children (Scotland) Act, 1875.
This Act shall extend to Scotland only.
Where [F2the whole estate of an intestate is of a value not exceeding ; [F1£25,000] an applicant for confirmation thereto] may apply to the commissary clerk of the county within which the intestate was domiciled at the time of death; and the said commissary clerk shall prepare and fill up an inventory and relative [F3declaration], as nearly as may be in the form of Schedule A. appended to this Act, and [F4on the inventory and declaration being signed by the applicant] , and on caution being found by the applicant according to the practice of the commissary court shall proceed to record said inventory and expede confirmation in the form as nearly as may be of Schedule B. annexed to this Act, and shall deliver the same to the applicant [F2on payment of the requisite fee] : . . . F5; and such confirmation shall have the same force and effect as that prescribed in Schedule D. annexed to the M1Confirmation of Executors (Scotland) Act, 1858 . . . F6
Textual Amendments
F1Words in s. 3 substituted (1.4.1999) by S.I. 1999/290, art. 2(a)
F2Words in s. 3 substituted by Confirmation to Small Estates (Scotland) Act 1979 (c. 22, SIF 116:2), s. 1(1)(a)
F3Word in s. 3 substituted (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 24(1)(a); S.I. 1996/2894, art. 3, Sch. (as amended by S.I. 1996/2966, art. 2)
F4Words in s. 3 substituted (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2) s. 74(1), Sch. 8 para 24(1)(b); S.I. 1996/2894, art. 3, Sch. (as amended by S.I. 1996/2966, art. 2)
F5Words in s. 3 repealed by Finance Act 1975 (c. 7, SIF 99:3), ss. 52(2)(3), 59, Sch. 13 Pt. I
F6Words in s. 3 repealed by Administration of Estates Act 1971 (c. 25, SIF 116:1, 2), s. 12, Sch. 2 Pt. I
Marginal Citations
The commissary clerk of the county may require such proof as he may think sufficient to establish the identity and relationship of the applicant.
If the commissary clerk of the county has reason to believe that [F7the estate and effects of which the intestate died possessed exceed [F8the value] specified in section three of this Act] , he shall refuse to proceed with the application until he is satisfied as to the real value thereof.
Textual Amendments
F7Words substituted by Small Estates (Representation) Act 1961 (c. 37), s. 1(1), Sch. 1 para.1(2)
F8Words in s. 5 substituted by Confirmation to Small Estates (Scotland) Act 1979 (c.22, SIF 116:2), s. 1(1)(b) (Small Estates (Representation) Act 1961 (c.37), s. 1(1), Sch. 1 para. 1(2) repealed (S.) by Confirmation to Small Estates (Scotland) Act 1979 (c. 22, SIF 116:2), s. 2, Sch.)
F9. . . The term “commissary clerk” shall throughout this Act include “commissary clerk depute.”
Textual Amendments
F9Words in s. 6 repealed (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(2), Sch. 9; S.I. 1996/2894, art. 3 Sch. (as amended by S.I. 1996/2966, art. 2)
Any rules and orders and tables of fees requisite for carrying this Act into operation shall be framed and may from time to time be altered by the Court of Session by act of sederunt . . . F10.
Textual Amendments
F10Words in s. 7 repealed by Confirmation to Small Estates (Scotland) Act 1979 (c. 22, SIF 116:2), s. 1(1)(c), Sch.
Provided always, that nothing herein contained shall be construed to effect any duty now payable on inventories of personal estate.]
Textual Amendments
F11S. 8 repealed in relation to deaths occurring after 13. 4. 1975 and, so far as regards certain duties in relation to any death, by Finance Act 1975 (c. 7, SIF 99:3), ss. 52(2), 59, Sch. 13 Pt. I, note (with a saving in s. 52(3) in relation to repayment or allowance in respect of certain sums paid before 13. 3. 1975 on account)
Textual Amendments
F12Words in Sch. A substituted (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 24(2)(a); S.I. 1996/2894, art. 3, Sch. (as amended by S.I. 1996/2966, art. 2)
Inventory of the Personal Estate, wheresoever situated, of [name and description of deceased] who died at on the day of 18.
| Scotland. | £ | s. | d. |
|---|---|---|---|
| 1. | Cash in the house | ||
| 2. | Household furniture and other effects in the deceased’s house | ||
| 3. | Stock in trade and other effects belonging to deceased | ||
| 4. | Sum in bank; viz., [specify it with interest thereon to date of [F12declaration] to Inventory.]* | ||
| *[Add any other estate in the usual form.]— | |||
At , the day of one thousand eight hundred and, [F13[name and address of applicant] (hereinafter referred to “the applicant”) hereby declares], that the said died at upon the day of , and had at the time of his [or her] death his [or her] ordinary or principal domicile in the county of : That the [F14applicant] is the [widow or son or daughter of the said deceased , and is desirous to enter upon the possession and management of the deceased’s estate as his [or her] executor: That the [F14applicant] does not know of any testamentary settlement or writing relative to the disposal of the deceased’s personal estate or effects, or any part thereof: That the foregoing inventory, signed by the [F14applicant] and the said as relative hereto, is a full and complete inventory of the personal estate and effects of the said deceased wheresoever situated and belonging or due to him [or her] beneficially at the time of his [or her] death, in so far as the same has come to the [F14applicant’s] knowledge: That the value at this date of the said personal estate and effects, including the proceeds accrued thereon down to this date, does not exceed [F15£25,000] sterling: That confirmation of the said personal estate in Scotland [England and Ireland as the case may be] is required in favour of the [F14applicant]. F16. . .
Textual Amendments
F13Words in Sch. A substituted (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 24(2)(b); S.I. 1996/2894, art. 3, Sch. (as amended by S.I. 1996/2966, art. 2)
F14Words in Sch. A substituted (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 24(2)(c); S.I. 1996/2894, art. 3, Sch. (as amended by S.I. 1996/2966, art. 2)
F15Sum in Sch. A substituted (1.4.1999) by S.I. 1999/290, art. 2(b)
F16Words in Sch. A repealed (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74, Sch. 8 para. 24(2)(d), Sch. 9; S.I. 1996/2894, art. 3, Sch. (as amended by S.I. 1996/2966, art. 2)
Modifications etc. (not altering text)
C6Forms prescribed by S.I. 1967/789 are to be used by Sheriff Clerks and may be used with modifications by Commissary Clerk of Edinburgh in lieu of form prescribed by Sch. B
Confirmation Dative of A.B., who resided at [name and description of deceased]
The said A.B. had pertaining and resting owing to at the time of his [or her] decease.
[Take in inventory of estate to be confirmed.]
I, , Esquire, Commissary of the county of , considering that the said A.B. died at on , and had at the time of death his [or her] ordinary or principal domicile in the county of . And seeing that C.D., his [widow or son or daughter, or her son or daughter] has given up, on [F17declaration] , an inventory of the personal estate and effects of the said A.B., at the time of death, including the proceeds accrued thereon to date of [F17declaration] , situated in Scotland [England and Ireland as the case may be], amounting in value to , and has [F18declared] that the whole personal estate and effects of the said A.B. does not exceed in value [F19£25,000] , which inventory, as before written, has been recorded in my court books, of date , and that has [or have] likewise found caution for acts and intromissions as executor [or executors]. Therefore I, in Her Majesty’s name and authority, decern, make, constitute, ordain, and confirm the said C.D. executor, [or executors] dative qua [relict or next of kin] to the deceased, with full power to to uplift, receive, administer, and dispose of the said personal estate and effects, and grant discharges thereof, if needful to pursue therefor, and generally every other thing concerning the same to do that to the office of executor dative qua is known to belong: Providing always, that shall render just count and reckoning for intromissions therewith, when and where the same shall be legally required. Given under the seal of office of the commissariot of and signed by the clerk of court at , the day of one thousand eight hundred and
Textual Amendments
F17Words in Sch. B substituted (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 24(3)(a); S.I. 1996/2894, art.3, Sch. (as amended by S.I. 1996/2966, art.2)
F18Word in Sch. B substituted (1.3.1997) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(1), Sch. 8 para. 24(3)(b); S.I. 1996/2894, art. 3, Sch. (as amended by S.I. 1996/2966, art. 2)
F19Words in Sch. B substituted (1.4.1999) by S.I. 1999/290, art. 2(c)
Commissary Clerk.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F20Sch. C repealed by Confirmation to Small Estates (Scotland) Act 1979 (c. 22, SIF 116:2), s. 1(1)(f), Sch.