Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

18 Executry practitioners

(1) The Board shall establish and maintain a register of executry practitioners, which shall be available for inspection by any person without charge.

(2) Where, on an application made to them in such form as they may determine, the Board are satisfied that the applicant fulfils the conditions specified in subsection (3) below, the Board shall grant the application and shall enter the applicant’s name in the register of executry practitioners.

(3) The conditions referred to in subsection (2) above are that the applicant—

(a) is a fit and proper person to provide executry services;

(b) complies with the requirements prescribed by regulations made under subsection (10) below; and

(c) maintains suitable arrangements (whether by means of insurance policies or otherwise) to satisfy any successful claims made against it in connection with the provision of executry services.

(4) The Board may require an applicant under subsection (2) above to provide such further information in connection with the application as they consider necessary.

(5) Where the Board—

(a) grant an application under subsection (2) above, they may attach such conditions as they may determine, and shall record any such conditions against the applicant’s name in the register;

(b) refuse such an application, they shall give the applicant written reasons for their decision.

(6) Where the Board—

(a) grant an application under subsection (2) above subject to conditions; or

(b) refuse such an application,

the applicant may, within 21 days of the date on which the Board’s decision is intimated to it, apply to the Board to review their decision.

(7) Where the Board have reviewed a decision mentioned in subsection (6) above the applicant may, within 21 days of the date on which the outcome of such review is intimated to it, apply to the Court of Session and the Court may make such order in the matter as it thinks fit.

(8) Where an executry practitioner applies to the Board to remove its name from the register the Board shall, if they are satisfied that the practitioner has made adequate arrangements with respect to the business it then has in hand, grant the application and amend the register accordingly.

(9) The Board shall send to the Keeper of the Registers of Scotland and to each sheriff clerk—

(a) as soon as practicable after 1st April in each year, a list of all executry practitioners; and

(b) written notice of any subsequent change to the register of executry practitioners.

(10) The Secretary of State shall, subject to section 40 of this Act and after consultation with such persons as he considers appropriate, by regulations make such provision as he thinks fit with a view to maintaining appropriate standards of conduct and practice of executry practitioners and such regulations shall, in particular, make provision as to educational qualifications and practical training.

(11) Regulations under subsection (10) above shall be made by statutory instrument and no regulations shall be made under that subsection unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

(12) It shall be the duty of—

(a) an executry practitioner to comply with the requirements of regulations made under subsection (10) above and any direction of the Board under section 20(2)(a) or (b) of this Act; and

(b) the Board to ensure such compliance.

(13) Any person who—

(a) wilfully and falsely—

(i) pretends to be an executry practitioner; or

(ii) takes or uses any name, title, addition or description implying that he is an executry practitioner; or

(b) being an executry practitioner, provides executry services at a time when his registration as such is suspended,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(14) Where an offence under subsection (13) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

(a) any director, secretary or other similar officer of the body corporate, or

(b) any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(15) Where an offence under subsection (13) above is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.