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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11146
Experience:  30 years as a practising solicitor.
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can you please provide me with template a

Customer Question

Hello can you please provide me with template a for an initial Writ to petition the Sheriff Court in Edinburgh for executor Dative? My British national husband aged 38, passed away in 10/02/2013 in Hong Kong. We lived in HK as expats and kept our main residence - flat in Scotland, Edinburgh, where we lived for 8 years before leaving for HK. He left no will. We have two children 6 and 8 years old. Living relatives are Myself (wife), his parents and his brother. Our family's wish is for me to act as executor Thank you Category: Scots Law

Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
Is the title to the flat in joint names and to the survivor?
Is there any other estate held in Scotland?
Did you both consider yourself to remain domiciled in ascotland although you lived in Hong Kong?
Customer: replied 2 years ago.

The title to the flat is in joint name, but his share does not pass to me upon his death automatically, but to the estate, as per legal advice I received earlier.

There is no other estate in scotland.

At the time of his death we both considered ourselves domiciled in scotland where we planned to go back once kids are a bit older. When he died, I moved to Lithuania where my mother lives to get help (I was born in Lithuania). We are both British citizens and were not permanent residents in HK.

Expert:  JGM replied 2 years ago.
Cases where people stay abroad and aren't necessarily domiciled there are more complicated and sometimes you have to get an Affidavit from a lawyer in the state the person died in to say that the law there allows the appointment of an executor in Scotland to wind up the person's estate in Scotland.
However, if that happens, there is no doubt that you would have to instruct a solicitor in Scotland to deal with this. In the meantime, hopefully the following will suffice:
COMMISSARIOT OF LOTHIAN AND BORDERS
SHERIFFDOM OF LOTHIAN AND BORDERS
AT EDINBURGH SHERIFF COURT
​INITIAL WRIT
​In Causa
​(name and address of wife) PURSUER

The Pursuer craves the court:-
To decern the Pursuer executrix dative qua wife of the deceased *** formerly residing at *** and to grant warrant to the Commissary Clerk to issue Confirmation in favour of the Pursuer as executrix dative of the deceased ***, a native of Scotland whose last address there was at *** and who latterly resided at ***.
signed, ​​PURSUER
CONDESCENDENCE
1. The said *** died intestate at Hong Kong on ***. He had at the time of his death his ordinary or principal domicile in Scotland.
2. He was born in Scotland and was married there. He and his wife *** the Pursuer, resided together at *** and were domiciled in the Sheriffdom of *** in Scotland.
3. The deceased together with the Pursuer settled in Hong Kong in *** or thereabouts for reasons of work. It was their intention to return to Scotland when their children were older. They maintained a home in Scotland. The deceased and the Pursuer considered that they remained domiciled in Scotland notwithstanding that they lived and worked in Hong Kong.
4. The deceased maintained no bank or building society accounts nor held any other investments in Scotland or the United Kingdom as a whole. His estate in Scotland consists of a one half pro indiviso share of a dwelling house at *** which is owned jointly with the Pursuer.
5. The deceased did not execute any Will under Hong Kong jurisdiction nor under Scots law.
PLEA-IN-LAW
1. The Pursuer along with the children of herself and the deceased being entitled to the estate of the deceased in Scotland is entitled to be confirmed his executor.
Signed, PURSUER
JGM and other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.

DearSir or Madam Respinse from Edinburh Sheriff Court

Customer: replied 2 years ago.

Dear Sir or Madam,

It looks that you have provided me with an inaccurate answer.

I have attached the response from Edinburgh Sheriff Court.

Can you please amend your reply based on the information attached.

Thank you

Neringa

Expert:  JGM replied 2 years ago.
The answer was not inaccurate but if the clerk does not require application for a warrant for confirmation on this occasion you can use the standard simple style thus:
"SHERIFFDOM OF
Initial Writ
by
…….PURSUER
The Pursuer craves the court:
To decern the Pursuer executor-dative qua relict of the deceased [ ].
PURSUER
CONDESCENDENCE
1. The said [ ] died intestate at [ ] on [ ]. He had, at the time of his death, no fixed or known domicile at the time of his death except that the same was in Scotland.
2. The Pursuer is the widow of the said [ ]
PLEA-IN-LAW
The Pursuer, being the widow of the said [ ] is entitled to be decerned his executor-dative.
​PURSUER"
Customer: replied 2 years ago.

Thank you for your reply.

Is your answer based on an example on page 479, A6-03 qua relict, Currie on Confirmation of Executors- 9th Edition?

Kind regards

Neringa Pritchard

Expert:  JGM replied 2 years ago.
Yes.