BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Statutory Instruments |
||
|
You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> Act of Sederunt (Chancery Procedure Rules) 1996 No. 2184 (S. 176) URL: http://www.bailii.org/uk/legis/num_reg/1996/uksi_19962184_en.html |
||
[New search] [Help]
Statutory Instruments
SHERIFF COURT, SCOTLAND
Made
16th August 1996
Coming into force
1st November 1996
The Lords of Council and Session, under and by virtue of the powers conferred on them by section 51 of the Titles to Land Consolidation (Scotland) Act 1868(1), section 32 of the Sheriff Courts (Scotland) Act 1971(2) and of all other powers enabling them in that behalf, having approved, with modifications, draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:
1.-(1) This Act of Sederunt may be cited as the Act of Sederunt (Chancery Procedure Rules) 1996 and shall come into force on 1st November 1996.
(2) This Act of Sederunt shall be inserted in the Books of Sederunt.
2. Schedule 1 to this Act of Sederunt shall have effect for the purpose of providing rules for the form and service of petitions presented to the Sheriff of Chancery, and for connected purposes.
3. The enactments mentioned in Schedule 2 to this Act of Sederunt are repealed or revoked, as the case may be, to the extent specified in that Schedule.
Hope of Craighead
Lord President, I.P.D.
Edinburgh,
16th August 1996
Paragraph 2
1. These Rules may be cited as the Chancery Procedure Rules.
2.-(1) In these Rules, unless the context otherwise requires-�
"the Act of 1868" means the Titles to Land Consolidation (Scotland) Act 1868 and a reference to a section of that Act shall be construed as a reference to that section as saved by section 37(1)(d) of the Succession (Scotland) Act 1964(3) and as revived by section 6 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980(4);
"the Act of 1874" means the Conveyancing (Scotland) Act 1874(5) and a reference to a section of that Act shall be construed as a reference to that section as saved by section 37(1)(d) of the Succession (Scotland) Act 1964;
"sheriff clerk of Chancery" includes the sheriff clerk depute of Chancery.
(2) Where there is a reference to the use of a form in these Rules, that form in the appendix to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require.
3.-(1) A petition for service or a petition for completion of title under section 10 of the Act of 1874 shall be in one or other of Forms 1 to 12, as the case may be.
(2) A petition for service or a petition for completion of title under section 10 of the Act of 1874 shall be subscribed by the petitioner or his solicitor.
4.-(1) Subject to rule 5 (evidence) below, a petition for service or a petition for completion of title under section 10 of the Act of 1874 shall not proceed until the expiry of 21 days from the date of publication.
(2) Publication of such a petition shall be by display of a copy of the petition on the walls of court.
(3) Publication of the petition shall be made-�
(a)in the case of a petition for general service-�
(i)in the sheriff court of the sheriff court district in which the deceased died domiciled;
(ii)where the deceased had at the time of his death no domicile in Scotland or where his domicile is not known, in the sheriff court at Edinburgh; or
(iii)where the deceased was domiciled in Scotland at the time of his death but had no fixed or known domicile in any sheriff court district, in the sheriff court at Edinburgh; and
(b)in the case of a petition for special service or a petition for completion of title under section 10 of the Act of 1874, in the sheriff court of the sheriff court district or each such district in which the lands are situated.
(4) Immediately on publication of the petition, the sheriff clerk shall foward to the sheriff clerk of Chancery a certificate in Form 13.
5.-(1) Evidence may be received at any time after a petition for service is accepted for publication.
(2) Any written statement (including an affidavit) or report, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988(6), may be received in evidence without being spoken to by a witness notwithstanding that it was made before the petition for service or a petition for completion of title under section 10 of the Act of 1874, was accepted for publication.
Paragraph 3
| Year of session and Chapter, or Statutory Instrument year and number | Title of Enactment | Extent of repeal or revocation |
|---|---|---|
| 1868 c. 101 | Titles to Land Consolidation (Scotland) Act 1868 | Sections 29 and 30. |
In section 33-� (a) from the words "no evidence shall be led" to the words "after the lapse of thirty days from such date; and"; (b) the words ", after the lapse of the times respectively above mentioned; and"; (c) from the words "and any parole evidence" to the words "one thousand eight hundred and fifty three,". | ||
| Section 34. | ||
| 1874 c. 94 | Conveyancing (Scotland) Act 1874 | In section 10, from the words ", and may be in the form of schedule E" to the words "and also setting forth the petitioner's own right to the said lands". |
| S.I. 1971/1165 | Act of Sederunt (Edictal Citations, Commissary Petitions and Petitions of Service) 1971 | Paragraph 3. |
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) and had at the time of his death his ordinary or principal domicile in the Sheriffdom of (insert name of sheriffdom).
[Or The late [CD] (design) died intestate at (place) on or about (date) and had his domicile furth of Scotland.]
[Or where the domicile of the deceased is unknown:-� The late [CD] (design) died intestate at (place) on or about (date) but the petitioner is unable to prove at which place the deceased had his ordinary or principal domicile at the time of his death.]
2. The petitioner is the eldest son ever born to [CD] and is accordingly his nearest lawful heir in general.
MAY IT THEREFORE please your Lordship to serve the petitioner [AB] nearest lawful heir in general to [CD].
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) and had at the time of his death his ordinary or principal domicile in the Sheriffdom of (insert name of sheriffdom).
[Or The late [CD] (design) died intestate at (place) on or about (date) and had his domicile furth of Scotland.]
[Or where the domicile of the deceased is unknown: -� The late [CD] (design) died intestate at (place) on or about (date) but the petitioner is unable to prove at which place the deceased had his ordinary or principal domicile at the time of his death.]
2. The eldest son ever born to [CD] was [EF] (design), who predeceased [CD], having died intestate on or about (date) or who survived [CD] but died intestate on or about (date).
3. The petitioner is the eldest son ever born to the said [EF] and is accordingly nearest lawful heir in general to [CD].
MAY IT THEREFORE please your Lordship to serve the petitioner [AB] nearest lawful heir in general to [CD].
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) and had at the time of his death his ordinary or principal domicile in the Sheriffdom of (insert name of sheriffdom).
[Or The late [CD] (design) died intestate at (place) on or about (date) and had his domicile furth of Scotland.]
[Or where the domicile of the deceased is unknown:-� The late [CD] (design) died intestate at (place) on or about (date) but the petitioner is unable to prove at which place the deceased had his ordinary or principal domicile at the time of his death.]
2. The eldest son ever born to [CD] was [EF] (design), who predeceased [CD], having died intestate on or about (date) and without issue or pre-deceased by his issue.
3. The next eldest son ever born to [CD] is the petitioner who is accordingly nearest lawful heir in general to [CD].
MAY IT THEREFORE please your Lordship to serve the petitioner [AB] nearest lawful heir in general to [CD].
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) and had at the time of his death his ordinary or principal domicile in the Sheriffdom of (insert name of sheriffdom).
[Or The late [CD] (design) died intestate at (place) on or about (date) and had his domicile furth of Scotland.]
[Or where the domicile of the deceased is unknown:-� The late [CD] (design) died intestate at (place) on or about (date) but the petitioner is unable to prove at which place the deceased had his ordinary or principal domicile at the time of his death.]
2. The petitioner is the only child ever born to [CD] and is accordingly nearest lawful heir in general to [CD].
MAY IT THEREFORE please your Lordship to serve the petitioner [AB] nearest lawful heir in general to [CD].
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 3(1)
1. The late [EF] (design) died at (place) on or about (date) and had at the time of his death his ordinary or principal domicile in the Sheriffdom of (insert name of sheriffdom).
2. [GH] (design), [JK] (design) and [EF] were the trustees of [LM] (design) and as such trustees together with the heir of the last surviving trustee they held the estate of the said [LM] in terms of (describe deed of trust). No other trustees were ever assumed (or as the case may be).
3. [GH] died on (date).
[JK] died on (date).
[EF] was the last surviving trustee of [LM].
4. The petitioners are the only son and daughter ever born to [EF] and the nearest lawful heirs of provision in general to [EF] in trust.
MAY IT THEREFORE please your Lordship in terms of the Titles to Land Consolidation (Scotland) Act 1868 as repealed by section 34(2) of and Schedule 3 to the Succession (Scotland) Act 1964 and revived by section 6 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 to serve the petitioners nearest lawful heirs of provision in general to the said [EF] in trust as aforesaid, under and by virtue of the said deed of trust.
(Signed)
[AB] and [CD] Petitioners
[or [XY] Agent for petitioners (designation and business address)]
Rule 3(1)
1. The late [EF] (design) died at (place) on or about (date) and had at the time of his death his ordinary or principal domicile in the Sheriffdom of (insert name of sheriffdom).
2. [GH] (design), [JK] (design) and [EF] were partners of and trustees for the firm of (insert name of firm) and as such trustees together with the heir of the last surviving trustee they held the estate of (describe estate) in terms of Disposition by (insert name of granter of disposition) with consent in their favour dated (date) and recorded in the Division of the General Register of Sasines applicable to the County of (insert name of county) on (date). No other trustees were ever assumed.
3. [GH] died on (date).
[JK] died on (date).
[EF] was the last surviving trustee of the said firm.
4. The petitioners are the only son and daughter ever born to [EF] and the nearest lawful heirs of provision in general to [EF] in trust.
MAY IT THEREFORE please your Lordship in terms of the Titles to Land Consolidation (Scotland) Act 1868 as repealed by section 34(2) of and Schedule 3 to the Succession (Scotland) Act 1964 and revived by section 6 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 to serve the petitioners nearest lawful heirs of provision in general to the said [EF] in trust as aforesaid, under and by virtue of the said Disposition.
(Signed)
[AB] and [CD] Petitioners
[or [XY] Agent for petitioners (designation and business address)]
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) vest and seised in [or in a share (eg one-half pro indiviso) of] ALL AND WHOLE
the subjects forming (insert short description sufficient to identify subjects for purposes of publication) in the County of (insert name of county) [or in the Burgh of (insert name of burgh) and County of (insert name of county)], now in the Sheriffdom of (insert name of sheriffdom) described in the Disposition by [G] in favour of [H], dated (date) and recorded in the Division of the General Register of Sasines for the County of (insert name of county) on (date),
[or if [CD's] infeftment contained a particular description:-� the subjects forming (describe as above) described in the Disposition in favour of the said [CD] after mentioned,]
[or describe the subjects particularly,]
conform to Disposition by [S] in favour of the said [CD], dated (date) and, along with warrant of registration thereon on behalf of the said [CD], recorded in the said Division of the General Register of Sasines [or in the Division of the General Register of Sasines for the County of (insert name of county)] on (date) [or otherwise specify [CD's] infeftment]; but always with and under the burdens and others in (specify burdens writs).
2. The petitioner is the eldest son ever born to [CD] and is accordingly nearest lawful heir in special to [CD] in the subjects specified above.
MAY IT THEREFORE please your Lordship to serve the petitioner special to [CD] in the subjects specified above.
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) vest and seised in [or in a share (eg one-half pro indiviso) of] ALL AND WHOLE
the subjects forming (insert short description sufficient to identify subjects for purposes of publication) in the County of (insert name of county) [or in the Burgh of (insert name of burgh) and County of (insert name of county)], now in the Sheriffdom of (insert name of sheriffdom) described in the Disposition by [G] in favour of [H], dated (date) and recorded in the Division of the General Register of Sasines for the County of (insert name of county) on (date),
[or if [CD's] infeftment contained a particular description:-� the subjects forming (describe as above) described in the Disposition in favour of the said [CD] after mentioned,]
[or describe the subjects particularly,]
conform to Disposition by [S] in favour of the said [CD], dated (date) and, along with warrant of registration thereon on behalf of the said [CD], recorded in the said Division of the General Register of Sasines [or in the Division of the General Register of Sasines for the County of (insert name of county)] on (date) [or otherwise specify [CD's] infeftment]; but always with and under the burdens and others in (specify burdens writs).
2. The eldest son ever born to [CD] was [EF] (design), who predeceased [CD] having died on or about (date) without issue or pre-deceased by his issue.
3. The petitioner is the next eldest son ever born to the said [CD] and is accordingly nearest lawful heir in special to [CD] in the subjects specified above.
MAY IT THEREFORE please your Lordship to serve the petitioner special to [CD] in the subjects specified above.
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 3(1)
1. The late [EF] (design) died intestate at (place) on or about (date) vest and seised in [or in a share (eg one-half pro indiviso) of] ALL AND WHOLE
the subjects forming (insert short description sufficient to identify subjects for purposes of publication) in the County of (insert name of county) [or in the Burgh of (insert name of burgh) and County of (insert name of county)], now in the Sheriffdom of (insert name of sheriffdom) described in the Disposition by [G] in favour of [H], dated (date) and recorded in the Division of the General Register of Sasines for the County of (insert name of county) on (date),
[or if [EF's] infeftment contained a particular description:-� the subjects forming (describe as above) described in the Disposition in favour of the said [EF] after mentioned,]
[or describe the subjects particularly,]
conform to Disposition by [S] in favour of the said [EF], dated (date) and, along with warrant of registration thereon on behalf of the said [EF], recorded in the said Division of the General Register of Sasines [or in the Division of the General Register of Sasines for the County of (insert name of county)] on (date) [or otherwise specify [EFís] infeftment]; but always with and under the burdens and others in (specify burdens writs).
2. [EF] never had a son.
3. The petitioners are the only daughters ever born to [EF] and are accordingly nearest lawful heirs portioners in special to [EF] in the subjects specified above.
MAY IT THEREFORE please your Lordship to serve the petitioners nearest lawful heirs portioners in special to [EF] in the subjects specified above.
(Signed)
[AB] and [CD] Petitioners
[or [XY] Agent for petitioners (designation and business address)]
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) vest and seised in [or in a share (eg one-half pro indiviso) of] ALL AND WHOLE
the subjects forming (insert short description sufficient to identify subjects for purposes of publication) in the County of (insert name of county) [or in the Burgh of (insert name of burgh) and County of (insert name of county)], now in the Sheriffdom of (insert name of sheriffdom) described in the Disposition by [G] in favour of [H], dated (date) and recorded in the Division of the General Register of Sasines for the County of (insert name of county) on (date),
[or if [CD's] infeftment contained a particular description:-� the subjects forming (describe as above) described in the Disposition in favour of the said [CD] after mentioned,]
[or describe the subjects particularly,]
conform to Disposition by [S] in favour of the said [CD], dated (date) and, along with warrant of registration thereon on behalf of the said [CD], recorded in the said Division of the General Register of Sasines [or in the Division of the General Register of Sasines for the County of (insert name of county)] on (date) [or otherwise specify [CD's] infeftment]; but always with and under the burdens and others in (specify burdens writs).
2. On [CD's] death he was succeeded by [EF] (design), the eldest son ever born to [CD] as his heir in the subjects specified above.
(NOTE: if relatives nearer in the line of succession have predeceased [CD], dispose of them and their issue thus:-� On [CD's] death he was succeeded by [EF] (design), the second eldest son ever born to [CD] as his heir in the subjects, [X] the eldest son ever born to [CD] having predeceased [CD] without issue).
3. [EF] died on or about (date) unserved and uninfeft and having only a personal right to the subjects [or to a share (eg one-half pro indiviso) of the subjects] and was succeeded by the petitioner, the eldest son ever born to [EF] [or otherwise as above], as his nearest lawful heir in the subjects specified above.
MAY IT THEREFORE please your Lordship to find the facts above set forth proved, and that the petitioner is entitled in terms of section 10 of the Conveyancing (Scotland) Act 1874, to procure himself infeft in the subjects specified above.
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) vest and seised in [or in a share (eg one-half pro indiviso) of] ALL AND WHOLE
the subjects forming (insert short description sufficient to identify subjects for purposes of publication) in the County of (insert name of county) [or in the Burgh of (insert name of burgh) and County of (insert name of county)], now in the Sheriffdom of (insert name of sheriffdom) described in the Disposition by [G] in favour of [H], dated (date) and recorded in the Division of the General Register of Sasines for the County of (insert name of county) on (date),
[or if [CD's] infeftment contained a particular description:-� the subjects forming (describe as above) described in the Disposition in favour of the said [CD] after mentioned,]
[or describe the subjects particularly,]
conform to Disposition by [S] in favour of the said [CD], dated (date) and, along with warrant of registration thereon on behalf of the said [CD], recorded in the said Division of the General Register of Sasines [or in the Division of the General Register of Sasines for the County of (insert name of county)] on (date) [or otherwise specify [CD's] infeftment]; but always with and under the burdens and others in (specify burdens writs).
2. On [CD's] death he was succeeded by [EF] (design), the eldest son ever born to [CD] as his heir in the subjects specified above.
(NOTE: if relatives nearer in the line of succession have predeceased [CD], dispose of them and their issue thus:-� On [CD's] death he was succeeded by [EF] (design), the second eldest son ever born to [CD] as his heir in the subjects, [X] the eldest son ever born to [CD] having predeceased [CD] without issue.)
3. [EF] died intestate [or testate] on or about (date) unserved and uninfeft having only a personal right to the subjects. The petitioner was appointed executor dative qua (specify in which capacity [AB] was appointed) of [EF] conform to decree of the Sheriff of (insert name of sheriffdom) dated (date) [or as the case may be]. An inventory of the estate of [EF] was given up and recorded in the Court Books of the Commissariot of (specify) and confirmation thereof was expede on (date) in favour of the petitioner as executor foresaid. In terms of paragraph 2 of Schedule 2 to the Succession (Scotland) Act 1964 the petitioner as executor foresaid is the heir of [EF] for the purposes of section 10 of the Conveyancing (Scotland) Act 1874.
MAY IT THEREFORE please your Lordship to find the facts above set forth proved, and that the petitioner as executor foresaid is, for the purposes of Part III of the Succession (Scotland) Act 1964, entitled, in terms of section 10 of the Conveyancing (Scotland) Act 1874, to procure himself infeft in the subjects specified above.
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 3(1)
1. The late [CD] (design) died intestate at (place) on or about (date) vest and seised in [or in a share (eg one-half pro indiviso) of] ALL AND WHOLE
the subjects forming (insert short description sufficient to identify subjects for purposes of publication) in the County of (insert name of county) [or in the Burgh of (insert name of burgh) and County of (insert name of county)], now in the Sheriffdom of (insert name of sheriffdom) described in the Disposition by [G] in favour of [H], dated (date) and recorded in the Division of the General Register of Sasines for the County of (insert name of county) on (date),
[or if [CD's] infeftment contained a particular description:-� the subjects forming (describe as above) described in the Disposition in favour of the said [CD] after mentioned,]
[or describe the subjects particularly,]
conform to Disposition by [S] in favour of the said [CD], dated (date) and, along with warrant of registration thereon on behalf of the said [CD], recorded in the said Division of the General Register of Sasines [or in the Division of the General Register of Sasines for the County of (insert name of county)] on (date) [or otherwise specify [CD's] infeftment]; but always with and under the burdens and others in (specify burdens writs).
2. [CD] never had a son.
3. [EF] (design) and [GH] (design) were the only daughters ever born to [CD].
4. [EF] predeceased [CD], having died on or about (date).
5. The petitioner is the eldest son ever born to [EF], and is accordingly one of the two nearest lawful heirs portioners to [CD], and as such heir in special to [CD] in one-half pro indiviso share of the subjects.
6. On [CD's] death he was succeeded by [GH] as his other heir portioner and therefore as such heir in the other half pro indiviso share of the subjects.
7. [GH] died on or about (date) unserved and uninfeft and having only a personal right to the half pro indiviso share of the subjects to which she was heir.
8. [GH] conveyed her whole estate heritable and moveable to her husband [JK] (design), by her will dated (date) and registered (specify place and date of registration). An extract is produced herewith.
9. [JK] survived [GH] but died on or about (date) never having been infeft in the half pro indiviso share of the said subjects of which [GH] was heir.
10. [JK] conveyed his whole estate heritable and moveable to the petitioner by his will dated (date) and registered (specify place and date of registration). An extract is produced herewith.
MAY IT THEREFORE please your Lordship (1) to serve the petitioner nearest lawful heir portioner to [CD] and as such heir in special to [CD] in one-half pro indiviso share of the subjects specified above; and (2) to find the facts above set forth proved, and that the petitioner is entitled in terms of section 10 of the Conveyancing (Scotland) Act 1874, to procure himself infeft in the other one-half pro indiviso share of the subjects.
(Signed)
[AB] Petitioner
[or [XY] Agent for petitioner (designation and business address)]
Rule 4(4)
At (place) on (date)
I hereby certify that the petition to the Sheriff of Chancery by the undernoted petitioner has this day been displayed in the Sheriff Court District of (specify) in the Sheriffdom of (insert name of sheriffdom).
Sheriff Clerk Depute
Note:-�
Petitioner (design)
Petition for *General Service
*Special Service
*Completion of Title
*Delete where not applicable.
(This note is not part of the Act of Sederunt)
This Act of Sederunt makes new provision in relation to the forms, subscription, publication, taking of evidence and issue of extract in chancery petitions.
It revokes paragraph 3 of the Act of Sederunt (Edictal Citations, Commissary Petitions and Petitions of Service) 1971 which made provision for publication of petitions of service.
It also repeals sections 29, 30 and 34, and parts of section 33, of the Titles to Land Consolidation (Scotland) Act 1868, and part of section 10 of the Conveyancing (Scotland) Act 1874, which provide for the form, publication and procedure with respect to petitions for service for which new provision is made in this Act of Sederunt.
1971 c. 58; section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, by the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), and by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2).
