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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10103
Experience:  30 years as a practising solicitor.
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Could you please provide me with a template initial writ to

Customer Question

Hi, could you please provide me with a template for an initial writ to petition the Sheriff Court in Edinburgh for Executor Dative?
Background:
My brother who was born and bred in Scotland but died in Holland Aug 2015. He was not domiciled in Holland but he has an estate ( only a bank account no property) in Holland. He also has a small estate in Scotland (this does not include a dwelling house). My brother is survived by me (his brother), his mother and his other deceased brother's 2 children. I have applied to the Sheriff Court in Edinburgh referring to Currie on Confirmation believing Style A6-11 was the appropriate style, but they have rejected this. They sent me a letter advising me to refer to Currie on Confirmation without explaining what the error is with my application.
Regards,
Submitted: 4 months ago.
Category: Scots Law
Expert:  JGM replied 4 months ago.

What edition of Currie are you using?

Customer: replied 4 months ago.
9th Edition
This is what I sent to Edinburgh:
Commissariot of Lothian and Borders
Sheriffdom of Lothian and Borders at Edinburgh
INITIAL WRIT
by
A (I put my name here)--- PursuerThe above-named pursuer craves the court-
To decern the pursuer executor-dative qua brother of the full blood to the deceased D ( I put my brother’s name here).
CONDESCENDENCE
1.The said D died intestate at Leiden, Holland on 17/08/2015. He had, at the time of his death, no fixed or known domicile except that the same was in Scotland.
2.The said D died unmarried; and without entering into a civil partnership.
3.The said D was not survived by issue, however remote, or by his father but was survived by his mother. The pursuer is a brother of the full blood of the said D and, accordingly, he and descendants of a predeceasing brother of the full blood, has right to a one half share of the intestate estate of the said D. The said D was not survived by brothers or sisters of the full blood, with the exception of the pursuer.
PLEA IN LAW
The pursuer, having right to share a one half share of the intestate estate of the said D, is entitled to be decerned his executor-dative.Thanks
Expert:  JGM replied 4 months ago.

In my opinion you have used the correct style. Unless the court can say why they don't like it. I would resubmit and ask them to call you to discuss it as I can't see what's wrong with it.

Customer: replied 4 months ago.
I phoned the court and informed them I took legal advice and that I was advised by a lawyer that in his opinion there is nothing wrong with the style I had submitted. The clerk at the court then suggested I need to add my full address on the writ immediately before the word pursuer. An example would read:Initial Writ
By
A ***** *****,***** Glasgow G22 5MA PursuerDo you think by omitting my address this is the reason that it was refused?
Thanks
Expert:  JGM replied 4 months ago.

Yes you do need your address on it. You would have thought that they would have told you that when they returned it because there's nothing wrong with your drafting.

Customer: replied 4 months ago.
Ok thanks. Just wondering what "design" in law actually means? I will resubmit to the court and see if it is accepted this time. Once I hear back from them I will update you.
Regards
Expert:  JGM replied 4 months ago.

"Design" means name and address.

Customer: replied 4 months ago.
Great, thanks. I'll send today to Edinburgh and feedback to you asap.Regards.
Expert:  JGM replied 4 months ago.

Many thanks. Please leave a positive rating so that I am creditd for my time.

Customer: replied 4 months ago.
Hi,
Edinburgh sent it back again with the same covering letter i.e refer to Currie on Confirmation or seek legal advice. There is clearly something missing from my submission. Is there anything else that should be submitted along with the style? I phoned the court only to be told they cannot advise and repeated I should seek legal advise.Regards.
Expert:  JGM replied 4 months ago.

From the information you gave me there's nothing wrong with the Petition. The commissary clerks at Edinburgh have a reputation for being unhelpful. Call them on Monday. Ask them what the problem is. If they don't cooperate tell them you will send the Petition back to them with a request that you will seek a hearing before the sheriff AND you will lodge a formal complaint to the Scottish Courts and Tribunal Service. That normally works! The only thing that appears to be missing from your draft above is that you should have IN RESPECT WHEREOF and your signature, name and address under both the crave and the plea in law. I presume you have that in your hard copy. You might want to scan and email the signed version that's been bounced and I'll have a look. I am embarrassed that the court service is giving you no help whatsoever here.

Customer: replied 4 months ago.
Hi,
I have attached the latest writ which was sent and rejected. The bits in yellow I have changed with made up names to protect my privacy. Could you type on it and use a different colour to highlight any changes at all?
I have previously queried with the court clerk in Edinburgh about adding my address underneath my hand written signature (bottom right hand corner of the writ) below Plea in Law. I never got a straight answer from the clerk but they went away and checked and it "seems?" you would only add the address if you were a legal person therefore I did not add my address.
I went to the ***** *****brary and rechecked Currie on Confirmation yesterday. I am wondering if I should include a "petition" which would give more details about my brother's address in Holland at the time of his death and his last known domiciled address in Edinburgh. It was chapter 7 in Currie on Confirmation. Is a petition the same as an initial Writ? Could this possibly be the reason for the rejection?
I did phone the courts on Friday before your last reply and again they said they were not legally qualified and cannot give advice!! I am very apprehensive about saying your advice as they may call my bluff and invite me to a hearing!
Regards,
Expert:  JGM replied 4 months ago.

A Petition is the same as an Initial Writ in this case and the sheriff c,Eik is at it. They can't on the one hand reject your application and on the other not tell you why. That's nothing to do with legal advice. That's just downright nonsense on their part. Tell them want an explanation as to why your application is being rejected or you will lodge a formal complaint. There is nothing wrong with your application.

Customer: replied 4 months ago.
Hi,
Thanks for your reply. I agree it is nonsense that they won't tell me what is wrong. I will ask them this time otherwise I will inform them that I will lodge a formal complaint.
You did not answer my question if you think should I include a "petition" which would give more details about my brother's address in Holland at the time of his death and his last known domiciled address in Edinburgh. It was chapter 7, Page 224 (7-22) in Currie on Confirmation. If so would I include this additional information on the Writ or on a separate piece of paper?
Thanks and Regards
Expert:  JGM replied 4 months ago.

There is no requirement to do this. You have put everything in that Currie requires.

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