Act of Sederunt (Judicial Factors Rules) 1992

Application to encroach on capital

15.—(1) Where the income from the estate of a ward is insufficient for the maintenance of the ward, the factor may apply to the Accountant for his consent to encroach on the capital of the estate for the purpose of maintaining the ward.

(2) An application under paragraph (1) of this rule shall be made by letter and shall be supported by such information as the Accountant may require.

(3) (a) On receipt of such an application, the Accountant shall—

(i) appoint the factor to intimate the making of the application in accordance with paragraphs (4) and (5) of this rule; or

(ii) require him to apply by note to the sheriff for special powers.

(b) Any person to whom intimation is appointed to be given in accordance with paragraphs (4) and (5) of this rule shall have the right to object to the application by lodging any objection in writing with the Accountant, and intimating a copy thereof to the factor within 28 days of the date on which the intimation was given.

(4) The persons to whom intimation under paragraph (3)(a)(i) of this rule is to be given are—

(a) the cautioner of the factor;

(b) the applicant for the appointment of the factor;

(c) the ward, unless the circumstances of the ward are such as would warrant dispensing with service on him of an application for the appointment of his factor;

(d) the persons upon whom the application for appointment of the factor was served and whose whereabouts are know to the factor; and

(e) all other persons who have an interest in the estate and whose identity and where abouts are known to the factor.

(5) Intimation under paragraph (3)(a)(i) of this rule shall be given by posting by registered or recorded delivery post or the nearest equivalent which the available postal service permits—

(a) a copy of the letter of application; and

(b) a notice setting out—

(i) the right of the person receiving the notice to object to the application in the manner provided in paragraph (3)(b) of this rule; and

(ii) that, in the absence of any such objection, the Accountant may consent to the application.

(6) The factor shall, on giving intimation under paragraph (3)(a)(i) of this rule, send to the Accountant a certificate of execution of service with a copy of the notice sent attached to it.

(7) Where no objections have been lodged, the Accountant may, on the expiry of the period for lodging objections, consent to the application (subject to such conditions as he thinks fit) or require the factor to apply to the sheriff for special powers.

(8) Where objections have been lodged, the factor shall, on expiry of the period for lodging objections, apply to the sheriff for special powers.