Bankruptcy (Scotland) Act 1985 (repealed)

5 Sequestration of the estate of living or deceased debtor.S

(1)The estate of a debtor may be sequestrated in accordance with the provisions of this Act.

F1[[F2(2)The sequestration of the estate of a living debtor shall be—

(a)by debtor application made by the debtor, if [F3subsection] [F4(2ZA) or] (2B) below applies to the debtor; or

(b)on the petition of—

(i)subject to subsection (2D) below, a qualified creditor or qualified creditors, if the debtor is apparently insolvent;

(ii)a temporary administrator;

(iii)a member State liquidator appointed in main proceedings; or

(iv)the trustee acting under a trust deed if, and only if, one or more of the conditions in subsection (2C) below is satisfied.]

[F5(2ZA)This subsection applies to the debtor where—

(a)the debtor—

(i)has been assessed by the common financial tool as requiring to make no debtor’s contribution, or

(ii)has been in receipt of a prescribed payment for a period of at least 6 months ending with the day on which the application is made,

(b)the total amount of the debtor’s debts (including interest) at the date the debtor application is made is—

(i)not less than £1500 or such other sum as may be prescribed, and

(ii)no more than £17000 or such other sum as may be prescribed,

(c)the total value of the debtor’s assets (leaving out of account any liabilities) on the date the debtor application is made does not exceed £2000 or such other amount as may be prescribed,

(d)the value of a single asset of the debtor does not exceed £1000 or such other amount as may be prescribed,

(e)the debtor does not own land,

(f)within the prescribed period, the debtor has been granted a certificate for sequestration of the debtor’s estate in accordance with section 5B,

(g)in the period of 10 years ending on the day before the day on which the debtor application is made or such other period as may be prescribed no award of sequestration has been made against the debtor in pursuance of an application made by the debtor by virtue of this subsection, and

(h)in the period of 5 years ending on the day before the day on which the debtor application is made no award of sequestration has been made against the debtor in pursuance of—

(i)an application made by the debtor other than by virtue of this subsection, or

(ii)a petition.

(2ZB)For the purposes of subsection (2ZA)(c) and (d)—

(a)any property of the debtor is not to be regarded as an asset if, under any provision of this or any other enactment, it would be excluded from vesting in the Accountant in Bankruptcy as trustee,

(b)if the debtor reasonably requires the use of a vehicle, any vehicle owned by the debtor the value of which does not exceed £3000 or such other amount as may be prescribed is not to be regarded as an asset,

(c)any other property of the debtor that is of a prescribed type is not to be regarded as an asset.

(2ZC)For the purposes of subsection (2ZA)(c) and (d), the Scottish Ministers may by regulations make provision about how the value of the debtor’s assets is to be determined.

(2ZD)The Scottish Ministers may by regulations modify subsection (2ZA).

(2ZE)Schedule A1 to this Act makes further provision about the application of certain provisions of this Act in relation to a debtor to whom subsection (2ZA) applies.]

(2A)F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2B)This subsection applies to the debtor where—

F7(a)the total amount of his debts (including interest) at the date [F8the debtor application is made] is not less than [F9£3,000 or such sum as may be prescribed] ;

(b)an award of sequestration has not been made against him in the period of 5 years ending on the day before the date [F8the debtor application is made] ; and

[F10(ba)the debtor has obtained the advice of a money adviser in accordance with section 5C(1),]

[F11(bb)the debtor has given a statement of undertakings (including an undertaking to pay to the trustee after the award of sequestration of the debtor’s estate an amount determined using the common financial tool),]

(c)the debtor F12. . . —

(i)is apparently insolvent; F13...

F13(ia). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F14(ib)has, within the prescribed period, been granted a certificate for sequestration of the debtor's estate in accordance with section 5B of this Act,]

(ii)has granted a trust deed [F15which is not a protected trust deed by reason of the creditors objecting, or not agreeing, in accordance with regulations under paragraph 5 of Schedule 5 to this Act, to the trust deed,]

and for the purposes of this paragraph a debtor shall not be apparently insolvent by reason only that he has granted a trust deed or that he has given notice to his creditors as mentioned in paragraph (b) of section 7(1) of this Act.

(2C)The conditions mentioned in subsection [F16(2)(b)(iv)] above are—

(a)that the debtor has failed to comply—

(i)with any obligation imposed on him under the trust deed with which he could reasonably have complied; or

(ii)with any instruction or requirement reasonably given to or made of him by the trustee for the purposes of the trust deed; or

(b)that the trustee avers in his petition that it would be in the best interests of the creditors that an award of sequestration be made.]

[F17(2D)No petition may be presented under subsection (2)(b)(i) above unless the qualified creditor has provided, by such time prior to the presentation of the petition as may be prescribed, the debtor with a debt advice and information package.

(2E)In subsection (2D) above, “debt advice and information package” means the debt advice and information package referred to in section 10(5) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17).]

[F18(2F)In subsection (2B)(c)(ib) above “the prescribed period” means such period, ending immediately before the debtor application is made, as may be prescribed under section 5B(5)(c) of this Act.]

[F19(3)The sequestration of the estate of a deceased debtor is—

(a)by debtor application made by the executor, or a person entitled to be appointed as executor, on the estate,

(b)on the petition of a qualified creditor, or qualified creditors, of the deceased debtor,

(c)on the petition of a temporary administrator,

(d)on the petition of a member State liquidator appointed in main proceedings, or

(e)on the petition of a trustee acting under a trust deed.]

F20(4)In this Act “qualified creditor” means a creditor who, at the date of the presentation of the petition [F21or, as the case may be, the date the debtor application is made] , is a creditor of the debtor in respect of liquid or illiquid debts (other than contingent or future debts [F22or amounts payable under a confiscation order]), whether secured or unsecured, which amount (or of one such debt which amounts) to not less than [F23[F24£3,000]] or such sum as may be prescribed; and “qualified creditors” means creditors who at the said date are creditors of the debtor in respect of such debts as aforesaid amounting in aggregate to not less than [F23[F25£3,000]] or such sum as may be prescribed [F26; and in the foregoing provisions of this subsection “confiscation order”[F27means a confiscation order under Part 2, 3 or 4 of the Proceeds of Crime Act 2002]].

F28[(4A)In this Act, “trust deed ”means [F29—

(a)] a voluntary trust deed granted by or on behalf of the debtor whereby his estate (other than such of his estate as would not, under [F30any provision of this or any other enactment] , vest in the F31. . . trustee if his estate were sequestrated) is conveyed to the trustee for the benefit of his creditors generally [F32; and]

[F32(b)any other trust deed which would fall within paragraph (a) but for—

(i)the exclusion from the estate conveyed to the trustee of the whole or part of the debtor's dwellinghouse, where a secured creditor holds a security over it; and

(ii)the fact that the debtor's estate is not conveyed to the trustee for the benefit of creditors generally because the secured creditor has, at the debtor's request, agreed before the trust deed is granted not to claim under the trust deed for any of the debt in respect of which the security is held.]]

[F33(4AA)In subsection (4A)(b) above “debtor's dwellinghouse” means a dwellinghouse (including any yard, garden, outbuilding or other pertinents) which, on the day immediately preceding the date the trust deed was granted—

(a)the debtor (whether alone or in common with any other person)—

(i)owned; or

(ii)leased under a long lease (long lease having the same meaning as in section [F349(2) of the Land Registration etc. (Scotland) Act 2012 (asp 5))] ; and

(b)was the sole or main residence of the debtor.

(4AB)For the purposes of subsection (4AA)(b) above, a dwellinghouse may be a sole or main residence irrespective of whether it is used, to any extent, by the debtor for the purposes of any profession, trade or business.]

[F35(4B)A debtor application shall—

(a)be made to the Accountant in Bankruptcy; F36...

F36(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F37(4BA)A debtor application must—

(a)include a declaration by the money adviser who provided the advice referred to in section 5C(1) that such advice has been given, and

(b)specify the name and address of the money adviser.]

F38(4C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(5)Paragraphs 1(1) and (3), 2(1)(a) and (2) and 6 of Schedule 1 to this Act shall apply in order to ascertain the amount of the debt or debts for the purposes of subsection (4) above as they apply in order to ascertain the amount which a creditor is entitled to claim, but as if for any reference to the date of sequestration there were substituted a reference to the date of presentation of the petition [F39or, as the case may be, the date the debtor application is made] .

(6)The petitioner shall [F40, on the day the petition for sequestration is presented under this section, send a copy of the petition] to the Accountant in Bankruptcy.

[F41[F42(6A)In the case of a debtor application, the debtor shall send a statement of assets and liabilities to the Accountant in Bankruptcy along with the application.]]

[F43(6B)In the case of a debtor application, the debtor must send a statement of undertakings to the Accountant in Bankruptcy along with the application.]

(7)Where, after a petition for sequestration has been presented but before the sequestration has been awarded, the debtor dies then—

(a)F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)if the petitioner is a creditor, the proceedings shall continue in accordance with this Act so far as circumstances will permit.

[F45(7A)Where, after a debtor application is made but before the sequestration is awarded, the debtor dies, then the application shall fall.]

(8)Where, after a petition for sequestration has been presented under this section but before the sequestration has been awarded, a creditor who—

(a)is the petitioner F46. . . ; or

(b)has lodged answers to the petition,

withdraws or dies, there may be sisted in the place of—

(i)the creditor mentioned in paragraph (a) above, any creditor who was a qualified creditor at the date when the petition was presented and who remains so qualified at the date of the sist;

(ii)the creditor mentioned in paragraph (b) above, any other creditor.

[F47(8A)Where, after a debtor application is made but before the sequestration is awarded, a creditor who concurs in the application withdraws or dies, any other creditor who was a qualified creditor at the date the debtor application was made and who remains so qualified may notify the Accountant in Bankruptcy that he concurs in the application in place of the creditor who has withdrawn or died.]

F48[(9)If the debtor—

F49(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)fails to disclose any material fact in [F50a statement of assets and liabilities sent to the Accountant in Bankruptcy in accordance with subsection (6A)] ; or

(c)makes a material misstatement in such statement of assets and liabilities,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both such fine and imprisonment.

(10)In any proceedings for an offence under subsection (9) above, it shall be a defence for the accused to show that he had a reasonable excuse for—

F51(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)failing to disclose a material fact; or

(c)making a material misstatement.]

Textual Amendments

F1S. 5(2)(2A)-(2C) substituted for s. 5(2) (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 3(2) (with s. 12(6)); S.I. 1993/438, art. 3

F2S. 5(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(3)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F3Words in s. 5(2)(a) substituted (15.11.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 9(1)(a), 17(3)(4) (with s. 14); S.S.I. 2010/314, art. 6 (subject to transitional provisions and savings in S.S.I. 2010/316, arts. 4-7)

F4Words in s. 5(2)(a) inserted (30.6.2014 for specified purposes, 1.4.2015 in so far as not already in force) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 5(1)(a), 57(2); S.S.I. 2014/172, art. 2, sch.; S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F5S. 5(2ZA)-(2ZE) inserted (30.6.2014 for specified purposes, 1.4.2015 in so far as not already in force) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 5(1)(b), 57(2); S.S.I. 2014/172, art. 2, sch.; S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F6S. 5(2A) repealed (15.11.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 9(1)(b), 17(3)(4) (with s. 14); S.S.I. 2010/314, art. 6 (subject to transitional provisions and savings in S.S.I. 2010/316, arts. 4-7)

F7Words in s. 5(2B)(a) substituted (1.4.2008 for specified purposes, 1.4.2015 in so far as not already in force) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 25(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(4), sch. 3 (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3); S.S.I. 2014/173, art. 2(a)

F8Words in s. 5(2B)(a)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(3)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F9Words in s. 5(2B)(a) substituted (1.4.2008 for certain purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 25(a), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F12Word in s. 5(2B)(c) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 15(1)(a), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F13S. 5(2B)(c)(ia) and word repealed (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), s. 57(2), sch. 4; S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F14S. 5(2B)(c)(ib) inserted (15.11.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 9(1)(c), 17(3)(4) (with s. 14); S.S.I. 2010/314, art. 6 (subject to transitional provisions and savings in S.S.I. 2010/316, arts. 4-7)

F15Words in s. 5(2B)(c)(ii) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(3)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F16Words in s. 5(2C) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(4) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F17S. 5(2D)(2E) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 26, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 8, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F18S. 5(2F) inserted (15.11.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 9(1)(d), 17(3)(4) (with s. 14); S.S.I. 2010/314, art. 6 (subject to transitional provisions and savings in S.S.I. 2010/316, arts. 4-7)

F20Word in s. 5(4) substituted (1.4.2008 for specified purposes, 1.4.2015 in so far as not already in force) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 25(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3); S.S.I. 2014/173, art. 2(b)

F21Words in s. 5(4) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F23Words in s. 5(4) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(3) (with s. 12(6)); S.I. 1993/438, art. 3

F24Words in s. 5(4) substituted (1.4.2008 for certain purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 25(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(iii)(ab) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F25Words in s. 5(4) substituted (1.4.2008 for certain purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 25(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(iii)(ab) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F27Words in s. 5(4) substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 456, 458(1)(3), Sch. 11 para. 15(2); S.I. 2003/333, art. 2(1), Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)

F28S. 5(4A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(4) (with s. 12(6)); S.I. 1993/438, art. 3

F29Word in s. 5(4A) inserted (15.11.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 10(1)(a), 17(3)(4) (with s. 14); S.S.I. 2010/314, art. 6 (subject to transitional provisions and savings in S.S.I. 2010/316, arts. 4-7)

F30Words in s. 5(4A)(a) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), s. 57(2), sch. 3 para. 4(b); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F31Word in s. 5(4A) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, {art. 3(1)(h)(2)(3), Sch. 2} (with arts. 4-6, 10) (as amended by S.S.I. 2011/31, art. 5)

F32S. 5(4A)(b) and preceding word inserted (15.11.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 10(1)(b), 17(3)(4) (with s. 14); S.S.I. 2010/314, art. 6 (subject to transitional provisions and savings in S.S.I. 2010/316, arts. 4-7)

F33S. 5(4AA)(4AB) inserted (15.11.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 10(2), 17(3)(4) (with s. 14); S.S.I. 2010/314, art. 6 (subject to transitional provisions and savings in S.S.I. 2010/316, arts. 4-7)

F35S. 5(4B)(4C) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(3)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F36S. 5(4B)(b) and word repealed (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), s. 57(2), sch. 4; S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F39Words in s. 5(5) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(6) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F40Words in s. 5(6) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(5) (with s. 12(6)); S.I. 1993/438, art. 3

F41S. 5(6A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(6) (with s. 12(6)); S.I. 1993/438, art. 3

F46Words in s. 5(8)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, {art. 3(1)(h)(i)(2)(3), Sch. 2} (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F48S. 5(9)(10) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(7) (with s. 12(6)); S.I. 1993/438, art. 3

F49S. 5(9)(a) and word repealed (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 45(1)(a)(i), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F50Words in s. 5(9)(b) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 45(1)(a)(ii), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F51S. 5(10)(a) and word repealed (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 45(1)(b), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

Modifications etc. (not altering text)

C1S. 5 amended (20.7.2001 for certain purposes and otherwise 1.12.2001) by 2000 c. 8, s. 372(1)(b); S.I. 2001/2632, art. 2, Sch. Pt. I; S.I. 2001/3538, art. 2(1)