The Executry Practitioners (Scotland) Regulations 1997

Interpretation

2.—(1) In these Regulations, unless the context otherwise requires–

“the Act” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990;

“adequate professional services” means professional services of a quality which could reasonably be expected of a competent executry practitioner;

“associate”, in relation to an executry practitioner, means–

(a)

a person who is related to that executry practitioner as mentioned in paragraph (2);

(b)

a person who is a partner or employee of that executry practitioner; or

(c)

a person who is a director, member or employee of the same company or group of companies in which that executry practitioner is also a director, member or employee;

“Bank” means an institution authorised under the Banking Act 1987(1) and shall include a European deposit taker as defined in regulation 82(3) of The Banking Coordination (Second Council Directive) Regulations 1992(2);

“the Board” means the Scottish Conveyancing and Executry Services Board;

“Building Society” has the same meaning as in section 119(1) of the Building Societies Act 1986(3);

“client” includes a prospective client and, where the client is acting as an executor on the estate of a deceased person or as a trustee, includes the client acting in that capacity;

“clients' money” means all money held or received by an executry practitioner on account of a client for whom that executry practitioner is providing, or has provided, executry services whether the money is held by that executry practitioner as agent, trustee or in any other capacity;

“conveyancing services” have the same meaning as in section 23 of the Act;

“executry practitioner” has the same meaning as in section 23 of the Act;

“executry services” have the same meaning as in section 23 of the Act;

“group of companies” means a holding company and its subsidiaries within the meaning of section 736 of the Companies Act 1985(4);

“inadequate professional services” have the same meaning as in section 23 of the Act;

“independent qualified conveyancer” has the same meaning as in section 23 of the Act;

“qualified person” means a person qualified to practice as a solicitor under section 4 of the Solicitors (Scotland) Act 1980(5) or an executry practitioner;

“recognised financial institution” means any institution which is–

(a)

an institution authorised by the Bank of England to operate a deposit-taking business under Part I of the Banking Act 1987(6);

(b)

a building society authorised to raise money from its members by the Building Societies Commission under section 9 of the Building Societies Act 1986(7);

(c)

a body authorised to carry on insurance business under section 3 or 4 of the Insurance Companies Act 1982(8); or

(d)

any subsidiary (as defined by section 736(1) of the Companies Act 1985) of a body falling within paragraph (a), (b) or (c) above whose business or any part of whose business, consists of the provision of executry services;

“related” shall be construed in accordance with paragraph (2);

“solicitor” has the same meaning as in section 65(1) of the Solicitors (Scotland) Act 1980(9);

“specified services” means any services within the following descriptions of services–

(a)

services relating to the acquisition, disposal, valuation or surveying of property or to any estate agency work to which the Estate Agents Act 1979(10) applies;

(b)

services relating to the provision of mortgage finance;

(c)

services relating to banking, investment, insurance or other financial services;

(d)

services related to the drawing up of a will, trust disposition and settlement or other testamentary document;

(e)

funeral services;

(f)

removal services;

(g)

conveyancing services;

(h)

taxation advisory services; and

(i)

services relating to arranging the provision of any of the services in this definition;

but shall not include any valuation or surveying services provided solely or primarily for the purposes of a person considering providing mortgage finance on the security of the property to be valued or surveyed;

“terms of engagement letter” has the same meaning as in regulation 12;

and other expressions used in these Regulations which are defined in section 23 of the Act shall have the same meaning in these Regulations as they have in that section.

(2) A party (“the first party”) is related to another party (“the second party”) if the first party is–

(a) the second party’s spouse;

(b) the second party’s brother, sister, ancestor or descendent;

(c) the second party’s spouse’s brother, sister, ancestor or descendent; or

(d) the spouse of any person who, by virtue of sub-paragraphs (b) or (c) above is a relative of the second party.

(3) For the purposes of paragraph (2)–

“ancestor” means a parent or a parent’s parent;

“brother” includes a half-brother and a step-brother;

“descendant” means a child or a child’s child;

“relative” includes a relative by adoption;

“sister” includes a half-sister and a step-sister;

“spouse” includes a former spouse, and a person living with another as that person’s husband or wife.

(4) For the purposes of paragraph (3)–

• “child” includes a step-child; and

• “parent” includes a step-parent.

(5) Unless the context otherwise requires, any reference in these Regulations to–

(a) a numbered section is to the section bearing that number in the Act;

(b) to a numbered regulation is to the regulation bearing that number in these Regulations; and

(c) in a regulation to a numbered paragraph is to the paragraph bearing that number in that regulation.

(1)

1987 c. 22.

(2)

S.I. 1992/3218.

(3)

1986 c. 53.

(4)

1985 c. 6; section 736 was substituted by the Companies Act 1989 (c. 40), section 144.

(5)

1980 c. 46.

(6)

1987 c. 22.

(7)

1986 c. 53; section 9 was amended and repealed in part by S.I. 1992/3218.

(8)

1982 c. 50.

(9)

1980 c. 46.

(10)

1979 c. 38.