I welcome members to the fourth meeting in 2016 of the Delegated Powers and Law Reform Committee, and as always ask members to switch off their mobile phones please. Agender item 1 is the opportunity to welcome Leslie Brennan and invite her in accordance with sections 3 of the code of conduct to declare any relevant interests. I have no relevant interests to declare. Thank you very much indeed. Agender item 2 is a decision on taking business in private. It's proposed that we take item 8 in private. That will allow us to consider the evidence received on the Succession Scotland Bill. Does the committee agree to do so please? Agender item 3 is instrument subject to affirmative procedure. No points have been raised by our legal advisers on the Freedom of Information Scotland Act 2002 designation of persons as Scottish Public Authorities Order 2016 draft, nor the Courts Reform Scotland Act 2014 consequential provisions order 2016 draft, nor the Equality Act 2010 specific due to Scotland amendment regulations 2016 draft, nor the Rehabilitation of Offenders Act 1974 exclusions and exceptions Scotland amendment number 2 order 2016 draft, nor the Kinship Care Assistance Scotland order 2016 draft, nor the Children and Young People Scotland Act 2014 modification of schedules 2 and 3 order 2016 draft, nor the National Health Service Scotland Act 1978 independent clinic amendment order 2016 draft, nor the Air Quality Scotland amendment regulations 2016 draft, nor the Reservoir Enforcement etc. Scotland order 2016 draft, nor the Children and Young People Scotland Act 2014 part 4 and part 5 complaints order 2016 draft, nor the Public Bodies Joint Working Scotland Act 2014 consequential modifications order 2016 draft, nor the Public Services Reform Insolvency Scotland order 2016 draft, nor the Public Services Reform Social Work Complaints Procedure Scotland order 2016 draft, nor the Letting Agent Code of Practice Scotland regulations 2016 draft, and finally the Pharmacy Premises Standards Information Obligations etc order 2016 draft is the committee content with these instruments please. Agender item 4 is instrument subject in negative procedure and again no points have been raised by our legal advisers on the sea fish prohibited methods of fishing forth of Clyde order 2016 SSI 2016 12, nor the Public Bodies Joint Workings prescribed health board functions Scotland amendment regulations 2016 SSI 2016 15, nor the name persons training qualifications experience and position Scotland order 2016 SSI 2016 16, nor the children's plan Scotland order 2016 SSI 2016 17, nor the fireworks Scotland amendment regulations 2016 SSI 2016 18, nor the water environment remedial measures Scotland regulations 2016 SSI 2016 19, nor the national assistance sums for personal requirements Scotland regulations 2016 SSI 2016 23, nor the products containing meat etc Scotland amendment regulations 2016 SSI 2016 24, nor the national assistance assessment of resources amendment Scotland regulations 2016 SSI 2016 25, nor the healthcare improvement Scotland fees regulations 2016 SSI 2016 26, nor the protection of vulnerable groups Scotland act 2007 prescribed purposes for consideration of suitability regulations 2016 SSI 2016 27 is the committee content with these please and agenda item find is instruments not subject to any parliamentary procedure and no points have been raised by our legal advisers on the Scottish Parliament elections regional returning officers and constituency returning officers order 2016 SSI 2016 9, nor the serious crime act 2015 commencement number one and saving provisions Scotland regulations 2016 SSI 2016 11, nor the courts reform Scotland act 2014 commencement number six and transitional provisions order 2016 SSI 2016 13, nor the water resources Scotland act 2013 commencement number three order 2016 SSI 2016 14, nor the public services reform Scotland act 2010 commencement number seven order 2016 SSI 2016 22 is the committee content with those instruments please thank you and I do want to say on behalf of the committee a huge word of thanks to our lawyers who have done a vast amount of work to get through those in the last week agenda item six is the educational scott sorry education Scotland bill this item is committee to consider the delegated power provisions in the bill as amended at stage 2 the stage 3 debate on the bill will take place on Tuesday 2 February 2016 therefore members should agree their conclusions today paragraph 3 of the schedule to the bill inserts a new section 3AA into the educational additional support for learning scottland act 2004 which is the 2004 act this new section sets out a list of wellbeing factors which are to be taken into account by an educational authority or a tribunal when considering whether a child's wellbeing is adversely affected these wellbeing factors also appear in section 96 of the scottland children and young people scottland act 2014 the 2014 act new section 3AA 3 of the 2004 act has inserted by the bill provides that the Scottish ministers may by regulations modify this list of wellbeing factors a similar power exists in section 96 6 of the 2014 act the supplementary delegated powers memorandum notes that the new power is necessary so as to enable the list of wellbeing factors to be updated in the 2004 act to meet any amendments made in the list of factors in section 96 of the 2014 act therefore the intention is the new power to be consequential on changes to the 2014 act power to amend the list of wellbeing factors in section 96 of the 2014 act is subject to the affirmative procedure whereas the power to be inserted into the 2004 act by the bill is subject to the negative procedure for reasons of consistency within the 2014 act the committee may consider this power ought also to be subject to the affirmative procedure does the committee agree to one draw to the attention of the parliament the power in the new section 3AA of the 2004 act has inserted by paragraph three of the schedule to the bill and two to recommend that the bill is further amended at stage three to make this power subject to the affirmative procedure thank you very much convener clearly you use the word that these powers in the 2004 act and the 2014 act are similar it does appear that they go beyond similarity to be actually identical and while I'm content that we do draw parliament's attention to the insertion of 3AA in the terms that you've suggested we agree I think also it's worth noting on the record that perhaps it might have been more satisfactory to simply amend one of the acts to consolidate into a single list so that you always had continuity between what would then be one list rather than two certainly clearly in having the negative procedure as it's currently drafted for one list and the affirmative for the other there's a substantial danger that the timescales for implementation would be different even if the orders were laid on the the same day so aligning them to the same procedure is certainly necessary but I do think it's slightly remiss that we haven't just taken the opportunity to end up with one list if the intention is the lists are always identical convener indeed are we content therefore to to recommend that we draw those to the committee's attention yes thank you sorry to the parliament's attention does the committee also agree that it's content with the remaining delegated powers in the bill which have been added or substantially amended at stage two yes thank you right that completes agenda item six agenda item seven will start once we've got the panel of witnesses in so I shall briefly suspend this meeting please well good morning again our penultimate agenda item today is oral evidence on the succession scotland bill and more specifically on the stage three amendments lodged by the government in relation to bonds of cation we will take evidence from three panels firstly from officials secondly from experts and lastly from the minister for community safety and legal affairs and I'd like to thank all the witnesses who are attending today given the very short notice we've been able to provide one way or another and I would also like to thank trust bar who have provided evidence in writing in such a short timescale as well so panel one and I welcome jill clark who's the head of civil law reform units in Scottish government neal mojie who's the solicitor Scottish government legal directorate carline drummond who's commissioner from Scottish law commission with chels garland who's a project manager of the Scottish law commission and jame mcdonald who's the head of policy and legislation branch of the Scottish courts and tribunal service so good morning to all of you again I think we'll go straight to questions which will be led by john scott thank you convener and again welcome back to this committee which is an unexpected pleasure for us and I dare say for you too again the first question I have is what are the circumstances in which it is currently required to obtain a bond of cation and how common is it for there to be such a requirement well maybe I give a little bit of background around that as well if no executor is named in a will and if there's no will the court will appoint an executor datif and normally this will be the surviving spouse or civil partner but if there's no such person then another person who is eligible to inherit would probably apply before obtaining confirmation an executor datif must find cation for the administration of the estate so it's for executor datif and in a very few circumstances executors nominate and the bond of cation is intended to protect the inheritance of beneficiaries and also debts owed to creditors of the estate against the wrongful actions of the executor and the only exception to this requirement is where the executor datif is the spouse of the deceased and his or her prior rights would use up the whole estate effectively and there are currently only two providers of bonds of cation Zurich and Royal Sun Alliance and Zurich has taken their business decision to withdraw from the market with effect from 1 February which is next week and the sole provider which will be Royal Sun Alliance they have a requirement that in order to provide a bond it's conditional on a solicitor being appointed to administer the estate and Zurich didn't have such a requirement and so Zurich's decision impacts mainly on small estates who are subject to what's known as the simplified procedure which currently doesn't require a solicitor and they will now have the additional burden of appointing a solicitor in order to obtain the necessary bond of cation and in terms of numbers I think there was about just short of 4,000 datif petitions in 1314 we can't break that down into small estates of course but I don't know if Jane has got anything to offer on numbers I think the most recent number we came up with was around about 800 or so smaller estates I think that that required bonds of cation I could just take the opportunity of registering for those who might be listening in or reading this am I right in thinking that an executor nominate is one who is named in the world an executor datif is someone who is given that power by the court thank you that would be might be helpful just to put that bit of Latin on the record John many thanks for that can I just ask you if there are any further implications of Zuruch with drawing provision of bonds of cation in terms of small estates and more generally not that we've considered no I mean the impact is the the cost on a small estate of having to bear the cost of the solicitor and the potential delay that it may create as well for the court service can you explain to the committee the purpose and effect of the amendments that you've lodged in terms of small estates and how in your view they address the problem created by Zuruch's decision to withdraw provision of bonds of cation well there's a series of amendments and the main one removes the requirement for executors who are administering a small estate subject to the simplified procedure to obtain a bond of cation and this is by amending the intestines widows and children's Scotland Act 1875 and the confirmation of executors Scotland Act 1823 which removes that requirement and that's to ensure that estates which currently benefit from a kind of streamlined supported process to minimise costs and to enable individuals to administer the state without they need to engage a solicitor continue to benefit from this facility and in addition amendment is being made to the confirmation of Scotland executor Scotland Act 1823 to ensure that civil partners enjoy the same exemption from the requirement to hold and to obtain a bond of cation where they are the executor data and through prior rights they would inherit the whole estate as well so that's putting them on a par with the current laws it relates to spouses and then we've also lodged amendments to give ministers a range of powers by way of future proofing against any further changes in the cation market okay thank you very much can you explain the committee the purpose and effect of the amendments you've lodged in terms of small estates i think you probably have and how in your view they address the problems created by i think i just asked that question didn't i going on to explain which small estates are eligible for the small estate procedure and therefore will be affected by the proposed exemption and can you explain the process by which small estates which are not suitable for the procedure are identified and removed i could start that answer and then perhaps Jane will help it a bit i mean just now if a small estate is classed as under the gross value of the estate which is subject to confirmation or to be confirmed to is under 36 000 pounds and the ones that qualify for the simplified procedure are the ones where there would be no competition for the office of executor or where there's no question around the validity of the will or what's contained in the will as the will formed correctly and where the deceased died in Scotland so not if they didn't die in Scotland so there's a kind of mechanism to filter out estates that might be more contentious and they can't use the simplified procedure Jane do you want to add to that yes the sheriff clerk who has authority to administer the small estates without reverting to any judicial consideration of it deals with it has to be the simple estate so it has to be the ones that the information is clearly laid out in a form there's no looking any deeper into the information on the form we accepted at face value and so it's the factual listing of details and then it's in estates where there's very simple listing of contents of in the inventory for example in if there's any inclusion of titles to land or anything of that sort we would say that they may wish to seek advice of this list or in these kind of estates or if there's any complication in the line to succession so it's not a simple working through the succession scotland act 64 which lays out a clear line succession if there's anything difficult there we would suggest that wasn't suitable for a small estate procedure and we'd ask them to go through a larger estate procedure which would bring it in front of a sheriff excellent thank you very much just extend that again forgive me just going back who is it if there's no executor who is it who draws up the inventory who is it who gets a gross valuation how does the process start please we ask the person who thinks they're entitled to be an executor they usually phone up the various financial institutions to hold the money the bank or whatever and they get the sum of money in the account the account numbers and they actually have to bring that to us so they have to get that before we can confirm them to the estate so it is a kind of they have to get some information without being an executor before they can actually apply to have that confirmed fully yeah that sounds actually enormously complicated forgive me it's not what's in front of us but if you're not already an executor then how do you even have authority to ask the bank for the balance of the account for somebody else i'm sorry i don't think that affects the legalities of this but i'm trying to get back to who it is who starts the whole process before they get anywhere near an executor being i simply don't know that the answer to that in a small estate all i know is that family members are able to turn up at the court with that information and they've obviously managed to get it from their banks often the banks of the family member is usually a father or a brother and they've been able to satisfy the bank that they're the person who at least has it has an entitlement to the to the estate even though they're not being confirmed okay i may be going back further than we need to steered i just wonder if it would be useful to get confirmation that it is the general practice of registrars who will of course register the death to hand the person registering the death a leaflet which will introduce the person registering the death to the activities they now should be considering undertaking and that's probably the starting point is that is that understanding i've stated one that's i'm seeing nodding in the public gallery so i suspect i'm correct substance of what we have here today steered i think you want to carry on with the the questions as indeed and and just to perhaps get on the record clearly in talking about bonds of cation here we're talking about a particular kind of insurance and i just wondered if it might be useful to say what attributes does this insurance policy have to have that make it a valid bond of cation under the law i mean in terms of insurance by understanding it's more of a guarantee it's a guarantee against the the actions of the the executor and a means of protecting the beneficiaries and creditors but jeane are you able to offer anything on that not particularly i'm afraid it's it's a fairly simple bond i have an example here which i could pass around but it's a fairly tied up in in legal phraseology but it is a fairly simple bond that just covers the the executor in insurance would it be interested to pass it round or possibly that might be useful but so therefore if it's a bond there is presumably a limit to the cover that's provided there's a value associated with the bond that's right the amount of the bond covers full amount of the confirmation in the estate okay i suppose the the questions around this subject are who who in essence is paying out and who who is liable ultimately to the beneficiaries is there that the existence of the bond vocation makes the primary liability to beneficiaries under circumstances of fraud negligence or maladministration is the the company or person who has issued the bond is that correct the executor really remains liable and indeed a beneficiary should pursue the executor first to get any loss back and the the bond is there to pick up and the pieces should that not be possible because perhaps the executor is bankrupt or he doesn't have the means to to meet that claim so is that suggesting there for the bond vocation is actually a protection for the executor rather than a protection for the beneficiaries it's intended as a protection for the beneficiaries and also creditors to the estate to ensure that they are paid out of any money that the estate has the state may not have sufficient to meet its debts but indeed indeed so so so therefore it is really ultimately it's the beneficiaries who benefit from the bond vocation process or or hopefully don't of course it would be the case now in order to recover what they might have been due under the distribution of the state had it not been subject to fraud negligence or maladministration there may be a legal process that the beneficiary might have to undertake is that beneficiary under what circumstances perhaps is that beneficiary able to access civil legal aid to progress that claim it would depend on whether the the beneficiary is eligible for legal aid civil legal aid so civil legal aid is available it could be available for advice and assistance or then full legal aid one or other or both and it may be partial they may have to make a contribution towards it depending on on their income so if they qualified for it they would obtain legal aid if the claim was a small claim so it was under £3000 that system is designed not to require a solicitor and it's a claim that they could raise themselves and legal aid wouldn't be payable for a small claim because it doesn't require the solicitor so any costs that are initially borne by the beneficiary in pursuing their legal claim if proved are they ultimately costs for the estate no i'm saying no that isn't my understanding my understanding isn't is that the bond wouldn't cover the beneficiaries legal costs so if we were raising a civil action quite often what you'd ask for is the money that you were due and the expenses of raising the action and that would be part of the action you raised that is the fairly standard procedure within in a court if you're raising an action to reclaim a debt and this would be just considered in the same way as any action to reclaim a debt so therefore the estate itself provided the claim is constructed appropriately i would bear the costs of pursuing yes if that's what the court allowed yes sorry convener i'm just checking i've covered that it's okay we're all we're all put on and therefore in the absence of there being sufficient funds in the estate ultimately the bond of gation would pick up the short costs for someone having to pursue their entitlements through the court that's what i had well it would guarantee the loss of the estate not this is it no often these actions actually happen i mean i appreciate the law says you have to have a bond of gation therefore everybody's going to have one but how often does it actually come down to our understanding it's very rarely right i think the scottish law commission found the same when they has anybody got any data at all even even if it's historical on how often these things actually happen the implications are i mean i spoke to royal sun alliance earlier this week and they felt that was commercial data that they couldn't provide fair to suggest perhaps you might agree disagree or declined to comment that given if as you suggest there might be 800 estates where this would apply and that we understand the average cost is around 150 pounds or thereby and therefore the total income per annum for the insurance company is 120 000 that therefore the claims that they might pay out if they're still in the market at all must be substantially less than that and the average claim is likely to be more than the cost of the bond of gation we can begin to see that the numbers must inevitably just for the commercial operation of this be pretty small indeed right i'm getting nodding heads so nobody's pick up on a flaw on on my comment right the final thing it might be just useful on this subject to cover i made reference to the leaflet that is passed out to people when they register deaths which for smaller states in particular is likely to be the starting point of a process and are you aware of whether that leaflet might be updated in the light of the changes we're now contemplating to the law or in fact is that probably not necessary because we're actually merely protecting the existing process by the changes we're making the leaflet isn't due a significant overhaul because we're waiting for any subsequent legislation but i mean we do update it through addendums and inserts and we can certainly do that and we and we would keep our website which has guidance on it up to date as well but it's probably as you say not essential a scottish court service website and that will be updated depending on the decisions that are made about the bondification so we have guidance on it thank you okay does john mason want to take over at this point thank you governor i mean on the surface of it there's not a huge number of amendments here and yet i think three times we have the phrase the scottish ministers made by regulations so there's quite a lot of delegated powers in here and i just wondered if you could explain why that's been necessary has it been time pressure or would that is it really that's what we believe the way it should be handled well i think we're acting responsibly to try and future proof and we only had two providers of bonds of cation which wasn't ideal we're down to one and that's very undesirable and to us royal sun alliance have assured us that they've no desire to stop providing bonds of cation and we can't say unequivocally that will never happen now i think we're far weirier and their business model may may change as well so and what we're trying to do with the powers is is look ahead and say well if we're left with no cationers do we want to be in the position that we're in right at this time where we're having to react very quickly to a change in the market so these powers would enable new cases to be created in which cation is not required to be found and they would enable the requirement for bond of bonds of cation to be completely abolished and they also enable the setting of conditions around things that would have to be met before an executive could be appointed and that could be for all executives or just certain types of executives and we could apply different processes to different types of executor data as well so they're all there to reflect that the market may change in the future and that we need to be ready to respond in an effective way and not a kind of knee jerk reaction and that provides that because otherwise we would have to bring forward emergency legislation potentially now and then emergency legislation again and that wouldn't be desirable either no not ideal i mean i do understand that i mean would it been possible to put a bit more in the bill for example the executive like who would be excluded could that have been detailed in more on the face of the bill i suppose going back to the reason that i mean this bill was supposed to be the vehicle for abolishing bonds of cation and it's not and it's not because of the response that we got to the consultation where people agreed that cation should be abolished but then there was not a lot of consensus around what alternate safeguards might look like and not everyone agreed that judicial discretion was the only answer people felt there should be other things and that combination of safeguards wasn't clear which is why we've consulted again so i think what we're trying to do is target who we think is affected now by by Zurich's decision which is the small estate and deal with that and then take powers that would enable us to either react in the future to to there being no cationers or to take forward the reform of bonds of cation once we've had the opportunity to analyse the second set of responses to the second consultation about the matter and see if things are clearer so there's kind of two options there okay fair enough i mean were there any other options apart from legislation at all i mean was it was anything else considered or was it just felt it has to be legislation well i think there's do nothing it's always the first option and for the reasons we've set out we didn't think that was tenable and the Scottish court service had already spoken with Zurich about their a supposed ability to delay their decision or be flexible about their decision but there wasn't any flexibility around that so those kind of options weren't really going anywhere i mean if we had waited or if we did wait until well the next session of parliament say and legislated then would that do you think that would have caused a problem yes i think it would cause a problem in terms of the expense that it would put some people to that they don't currently have to pay for solicitors fees and you know some people might have been reluctant to wind up their estate for that reason and that would have had quite a significant impact on on the Scottish court and tribunal service which Jane may be able to speak about a little more i think our main concern is that you'd be asking the court to grant confirmation in small estates which was simply not possible because the law requires them to have a bond of occasion so we'd be unable to operate the small estate procedure and i think it's the impact on the people of where the small estate is is under 36 000 and i have to say that at least a quarter of these in the last year were under 15 000 somewhere only for four or five thousand as people with one bank account who don't have anything much else but the bank won't release the money to them if it's a brother or a sister or an aunt or an uncle and so they need the confirmation so our concern initially really was to do with the impact on these people who would then have to go and seek legal advice which they would have to pay for which was unnecessary in the simplicity of the of winding up their relatives estate and then the knock on effect from that is that if all these people cannot confirm their estates apart from not being able even maybe to meet funeral expenses if they can't claim the money from the estate that they'd be a backlog of work that it would take us some time to work through but our principal concern is about the impact on the people who might otherwise be able to administer their small estate and wind up their relatives estate okay fair enough i mean i just wonder we were we were told in one of our briefing papers that a bond of cation is usually provided by an insurance company i mean can anyone or does anyone else provide bonds of cation i'm good probably refer to jane again but yes you can get private private cation and so you know someone who was willing to guarantee the value of an estate child's weekend i wonder if i could do no more perhaps than read answer of a book whose whose author will be appearing before you shortly the position appears to be that private individuals were formally permitted to be cationers but in practice now only persons authorised to carry on a regulated investment activity under the piece of legislation can be cationers which effectively means it's insurance companies that is now or will shortly be limited to one for the public sector or anything to step in and do that because they wouldn't fulfil that requirement there would need to be a regular from this information there would need to be a regulatory requirement and probably a fairly onerous one that if this was the sole purpose of the public sector involvement that small becomes a regulated financial transaction but that's where we've got indeed and the the the the as i understand it the continuing provider insurance company through their requirement that the bs list to instructed means that regardless of the size of the estate there will need to be a solicitor which not only adds to the cost for the for the estate but it also seems to me further insulates the company from any claim because you've got the executive the executor who's the first line as it were but then there's also a solicitor and if there's any negligence or whatever that's automatically covered by the indemnity policy and then you've got to get through those two hurdles before there's any possible claim on the on the case now indeed that's a rather clever insurance breaking actually steered is it not the case in fact that solicitors would in any event be covered for the defocations by the professional body of which they are members so therefore you're almost left in the position that the issuer of the bond of case has all but no liability and is merely raking in the money because of a quirk in the law and i'm getting nodding heads at the other end of the table convener thank you very much for for that intervention kind of sets it's actually wonderful to see you reading from a book it's lovely to know that you don't have to be dead before your own authority right on that happy note can i can i take us to leslie brennan i think wants to take us to the next bit please thank you the scottish government previously indicated that it would not be pursuing matters in relation to bonds of occasion in this con in the context of this bill can you now set out for the committee why you took the decision and why you now feel compelled to seek to amend this bill in this way yes what we set out was that um i suppose take a step back that in the 2009 report the scottish law commission recommended that bonds of occasion in their entirety for anybody who needed a bond of occasion should be abolished and we consulted on that basis as part of the consultation for this bill and as i mentioned just a little bit earlier whilst there was consensus that bonds of occasion should be abolished there wasn't any clarity or consensus around what additional safeguards might be needed to be put in place people thought that there should be something some were very light touch and some were becoming i just said a lot more burdensome than than a bond of occasion and so we needed to consult again on what that might look like which was why we decided not to to take us forward in in this bill in the interim we've had an unexpected decision from xeric and what we've tried to do is just say well what is the immediate impact of that impacts on small estates as jane's very abily described and we wanted to remedy that and so we're making quite a targeted and narrow amendment to deal with that and we're not actually addressing the bigger reform of bonds of occasion at this time we still want to take our time to do that okay so helpful leasing on to the next question do you intend to return to the to consider bonds of occasion further in the context of the subsequent succession bill yes as i say that was included in the in the second consultation that we did that consultation responses are just in the process of being finally analysed there'll be a report and that will be coming out soon and that's when we'll turn our mind to what we do on bonds of occasion and potentially we have two options now we have if there's another bill or we have regulation making powers if these were agreed can you just maybe just give more detail about the consultation that you undertook to inform your decision yes well what we consulted on the kind of two things that the the the commission had recommended one was that bonds of occasion be abolished the second was that there should be judicial discretion to to not appoint an executor data because there isn't that discretion at the moment and as i say there was a mixed response on whether the commission solution was that the the judicial discretion would provide the safeguard so would that be fair to say but we got a mixed response on that as to whether that in itself was sufficient and then equally there was concerns raised about judicial discretion in so far as it it changed what is just now quite an administrative process which can be contained in the way that Jane has described to one that becomes a judicial process and then there's sheriffs involved and there's costs involved in that as well and time and resource and that's an impact and so we were looking around the other suggestions that people made in terms of what safeguards might be put in place such as the kind of due diligence part of an executor data that they were fit fit for purpose that they understood their role that they could produce a scheme of distribution or a family tree and these are the kind of requirements that the locationers place on executors data at the moment so they make them go through kind of an extensive gathering of information before the location is agreed so it was all around that and then we've taken that one step further in the next consultation to say well what would these safeguards look like Are similar requirements in existence for executors nominative? I'll defer to any other colleague to say the circumstances in which an executor nominate requires a bondification but yes the same would apply because it's a bondification Sorry before you answer that perhaps I was actually pursuing a slightly different point that you were in essence telling the committee that executors data had to demonstrate an understanding of what they were doing and so on and so forth and I was merely seeking to see slightly independently of the issue of bondification whether executors nominate similarly had to demonstrate only if they're getting a bondification because my understanding is it's the caseiners who require these steps to be followed so if they were an executor nominate who didn't need a bondification they would presumably just have to do the normal stuff in terms of winding up the estate so an executor nominate is purely somebody who is legally capable in other words they're not legally incapable that's it they may or they may not be no no i'm meaning when i say that they're meant they have the mental faculties of a normal person this is perhaps not the right place to pursue this issue because it is tangential to the main subject convener because i am going to come on to it actually you think thank you studio is can i just actually pick up on what that might have meant and what certainly i'm hoping it meant are there any rules at the moment on on what a sheriff can do to disallow someone who is an executor nominate but who appears to the outside world to be a bad choice or are they in fact not only in nominate but actually entitled to proceed again i'm looking at jane but yes i mean somebody might have been nominated in a will but they've since lost capacity so yes and it wouldn't be appropriate that they that they went on to they wouldn't be capable of right but is that a court does the court decide that these cases if there was a suggestion made at all to us that the person named in a will was in compacts then we suggested an application be made then to the sheriff and and that would almost invariably be solicitors that that would never happen with a without a solicitor being involved and most often it's it's alerted to us again always by a solicitor making an application to a court to have somebody else either taken from the the body of the well who's not actually the named person because they're deemed not to be so the court has has a common law right to supplant that executor nominate if there's good reason for doing so if i'm making up the words but does that sound roughly right i couldn't tell you if it was common law or not i'm afraid off the top of my head and it would only be on the application of of a application of a party they wouldn't do it of their own accord they would have to be somebody would have to apply to replace that person in a will who would have to have an interest in the will yes a couple of a couple of words to that i think putting it very crudely that the position is that um for a an executive nominate somebody named in a will um there is essentially no requirement to obtain caution bonification that there are some old a few old cases where this has been found but essentially not and essentially the court has no power to refuse to appoint the person and obviously if the person likes capacity then they can't put themselves forward to the court to be appointed so it may be that there is a different way of cracking that not but if they're if they're capable and willing then as i understand it the court has no at the moment has no power to to refuse on the basis that they have been chosen by the test data yes indeed okay could i then move on colleagues to to ask what the government sees as the protections against fraud under the circumstances that what we have before us is is agreed by the parliament what what steps are you proposing please i have to say that it's probably not possible to remove all risk of fraud and the approach we've taken is to limit the exceptions from the requirement to fine-cation to estates which currently benefit from the smallest state special procedure and the extension of the spousal exemption to civil partners but we are also seeking a range of powers which offer flexibility to ensure that if necessary we're in a position to restrict the exemptions by for example requiring further information in terms of any losses suffered a beneficiary will continue to have recourse to sue the executor as they have now and indeed even now there's an expectation that a beneficiary would initially try to claim against the executor the protection that will be removed is that they will no longer have recourse to an assurance fund if there's a little or no prospect of recovery from the executor and that's why the amendments are targeted at the specific and narrow group of small estates a separate case has already been made for these small estates in one way because they qualify for the simplified procedure therefore already treated differently and there is already a filtering mechanism in the court which means that if a small estate is contentious then it doesn't qualify for the simplified procedure and again already in some small estates fund holders pay out without the need for confirmation and our understanding is that's not problematic and so we think this approach balances the risk to beneficiaries against the certainty of having to pay legal fees on all for all of these estates which are likely to be a drain on the estate yes okay that does make sense thank you could i then move to the amendments to give the government powers to to change things in in the future which again we understand um there are well there's a there's a list within here of of possible conditions although they're put in the generality i'm also conscious that we've received some advice from trust bar which i'm rather hoping the government has seen is is that fair comment you have you have seen it right i wouldn't upon you clearly they're using slightly different words and i i'm not commending there's in particular other than it comes from trust bar and we're grateful for them can you respond to to the idea that as to which particular conditions ought to be met or whether the generality of what's in the in the regulation is drafted is the best way to do it or whether we should be looking for you to put some of the more detail in this perhaps by amendment well i think we're really trying to have kind of quite responsive and responsive and flexible powers which is why they're probably drafted in in these terms but the conditions that might be included um you know around the court being satisfied that this the person is suitable for appointment um or that the court is to be provided with particular information about the person seeking appointment or about the estate so it's those sorts of conditions um or they have to produce certain material before the court can grant confirmation do you want to say anything about the powers now or not really yeah i mean the powers that have been taken in respect of the suitability kind of divide into two two parts one where the court can look at the the suitability of the individual and which is more along the lines of judicial discretion and a more kind of administrative process where they can consider certain pieces of information tick box information that's needed before they can accept the person as executive i think what concerns us as a committee is whether at this stage there's the right balance between the generality of trying to solve every possible problem and the specificity of solving the problem that's in front of us um and trying quite simply not to give the Government too wide a discretion to do things that Parliament will always jealously guard um i don't think what i'm looking at actually suggests to me that government is doing anything unreasonable but i wanted to test whether you whether you felt any of the other comments that have come at least suggested that you should be doing something differently um no it's the short answer i mean the regulations are subject to the affirmative procedure as well which would mean we would come back and um respond to any yeah can i just ask whether you've considered the possibility of actually even within a smaller state giving the court the option of requiring a bondification i know we're going to abolish them but actually requiring a trustee maybe an executive pardon me maybe to be to have to find some kind of bondification um in order to be appointed is that a discretion which the court should perhaps have at least for the time being i think that brings us back into all the difficulties around a discretion and how it's exercised and who would exercise it and what you know things that they might consider in the exercise of it and if that was done particularly at a judicial level because i think um at an administrative level we felt that that wasn't appropriate then um there are also resource implications and cost implications of that which we think would be um disproportionate to what we're doing here so on balance the proposal is that we do albeit perhaps very small very lightly increase the risk of fraud and maladministration but in the process we take out a huge amount of complexity and cost in the system and on balance that would seem to be a reasonable thing to do yes yep okay thank you right do me i think that brings us to the end of the the issues that we had thought we need to discuss my colleagues seem to employ that that's the case because this is an expedited process i really just want to make sure that everybody feels they've had their say ladies and gentlemen is there anything else that you feel you wanted to put on the record um we've just failed to ask you the right question no that's always encouraging right for as much as no one speaks i think yeah john please when the expedited process which convener speaks um and are very much um limited timescale of considering the expedited advice that you and others will be providing would you reserve the option to reconsider any of this area of of law terms of bond occasion in the next in the succession bill or or not in terms of it is for consideration in the next bill yes and we would certainly look at the experience of the impact of this change and if it's not as we anticipate then there's obviously an opportunity to remedy that but we would hope we wouldn't have to quite thank you okay thank you in which case thank you very much for your evidence and uh i'll briefly suspend to enable the panel to change right resuming thank you very much indeed it's my pleasure to welcome our panel of experts who are john kerrigan who's a partner with morrisons llp and a member of the law society of scotland uh ellie scoby who's a private client partner of bernett and reed llp and doctor dot reed who's senior lecturer in private law at the university of glasgow can i say thank you very much for coming in some cases some considerable distance through some pretty foul weather and also to listening to the panel beforehand so i think you're very well informed about what's going on and our questioning will be a lead again by john scott thank you convener and again i add my thanks to you for making such an effort to come here to help us today and at such short notice the first question is how common is it for there to be a requirement to obtain a bond of cation in particular how common is it in relation to small estates my thought about cases where there's bonds of cation is not just the number but actually most of them are where people die suddenly often in an accident so you've got families that are upset extremely by the suddenness of what's happened and are faced with the anxiety that comes from the additional paperwork it needing a bond of cation adds to the challenges in getting confirmation so i would say as well as the number which is probably not an enormous number it's actually the impact on the families that are affected i don't know whether anybody would be in a position to make more comment on the numbers i thought what we got from the scottish courts side was was helpful and probably reflective and i would also say that it's not necessarily smaller states i've got one just now where it's about a three million pound estate and the cost of the bond of cation is considerably greater than the hundred and sixty pounds in terms of a percentage of of the states that are central is it sort of less than one percent or is it ten percent or more between five and ten percent that solicitors see but it perhaps depends a little bit where they are and what kind of practice area they've got of course the really small ones go straight to the scottish courts and if they came to us we would usually send them straight to the sheriff clark to to help okay does anyone else have anything to say in that question no not not what are the implications of zoorich withdrawing provision of bonds of cation in terms of smaller states and more generally just want you to put it on the record i think it's never good to have only two providers in the first place when you're left with one monopoly provider they if they take right zoorich there were problems with zoorich because they were asking solicitors who were winding up in testate the states to sign undertakings to zoorich that they would do certain things which were actually leaving solicitors wide open to personal liability sun aligns don't do that but they do insist that where someone wants a bond of cation from them they have to have a solicitor if sun aligns saw that they were more at risk now because they are the only provider they might start to adopt the position that zoorich were adopting and that was trying to get the solicitors who were winding up the estates to further underwrite the risk that certainly wouldn't be a beneficial effect and would ultimately to more cost to the estates can also imagine the law society might have something to say about that as well the law society had concerns but we're waiting to see what was happening here if you like before becoming involved because what the law society didn't want to do was to cause a situation where zoorich might just say well if you've got concerns we'll withdraw we won't be bothered doing this anymore we're doing you a favour they weren't actually in my view but i'm speaking personally when i say that but zoorich changed the whole ballgame by themselves saying they were withdrawing not only from executives but also financial guardianships which concerns me although i know it's not an issue before this committee so do you see it as a very real threat real rather than imagined or a real threat that sun aligns rather than aligns might also say do you know what i would be guessing but i mean i have to say that my firm has always used royal and sun aligns for bonds of cation and we've never had a particular problem with them if a tricky estate arose then i or one of my colleagues would ask for a meeting with royal and sun aligns and we were invariably able to thrash it out and we were not asked to grant the type of undertaking which zoorich were starting to ask from solicitors winding up the states i mean if you want my personal view on bonds of cation which is perhaps your next question i'm probably one of those who caused confusion by responding as an individual to the first consultation document when i said that i was concerned that total abolition might leave certain estates vulnerable and therefore i would prefer a sheriff to have a discretion as to whether or not a bond of cation was required coupled with the right to say i'm not appointing you as executive data because you are on grounds shown to me not to fit in proper person now that's somebody from my background a practitioner and possibly semi academic speaking i must confess that was not a view that took into account the economic costs to the legal system of amendments which i accept are valid considerations given your practical disposition and given the real risk apparently that there may be no providers left where that to happen who would you suggest given the need you've outlined for all that to be providers who would you suggest could be providers there could be a government scheme i know you don't want to hear that either that we are you know we are looking for your evidence please come don't worry about what we want to hear please please tell us the way you see it in relation to financial guardianships i think it was fair to say that the public guardian santa mcdonald had concerns that there were only two providers sure it can draw in sun alliance and i think that she did suggest that if problems arose with either or both of these providers there could be a government scheme now i accept entirely what charles said that private cation is no longer available because of the regulatory system but i'm sure the government could have a system regulated and the question there would be what would be the cost of that scheme um rhon sun alliance uh i asked them the same question what is the history of claims against bonds of cation and the person to whom i spoke said hardly any they were very relaxed now uh i haven't done any empirical research as to the history of claims against financial guardianships it's an area of law which is burgeoning for all private client practitioners courts are now setting up dedicated incapacity courts to deal with financial guardianship and intervention order work and i think it's not beyond the bounds of possibility that if the sole provider indicated that they were going to withdraw from the market the government's faced with either you have no bond of cation or the government does something and that would be a government back scheme your comments about guardianship of financial guardianship very much appreciated but i don't think they're actually relevant to precisely what we're talking about now we do need to be careful to make sure we stick with that with the bill before us but it was it's an interesting comment and obviously anything that's parallel is a fair comment um john yes you said that the you felt the government might have the either the power or the willingness or the ability to step in could you clarify if you mean UK government or Scottish government would the Scottish government have the power to do that plus the Scottish government bonds of cation are not required in uh england yes but i'm thinking given the evidence we're given earlier that say it would have to be somebody who was financially regulated yeah i'm not sure if that would include the Scottish government or not i don't know the answer to that no okay for that okay yeah thank you fair question which is you're not the only one who thought of it but i don't think that's a question for you stewart sorry sorry i think stewart stewart want to is is that relevant yes i wanted just to probe essentially where a lawyer is operating the will be covered by professional indemnity yes and to be blunt is it fair to suggest that if the law said nothing about matters of bonds of cation that the safeguard would actually be the professional indemnity of the lawyer it's only because of the history of the law that we've got that because it's essentially there to protect against the laws getting things wrong is it not lawyers have to act under the instructions of their clients um you can advise a client to follow a particular course the client may not follow that course and if the client says you are no longer my lawyer i dismiss you please send me the whole funds that you're holding to the order of the estate the lawyer i think has to accept those instructions so there would be no professional negligence involved there if that executor then went off and wholly ignored all the advice from the lawyer as to who was entitled to this estate i don't think there's much the lawyer could do about that i think one of the areas where joe public if they think about bonds of cation imagines that there is a benefit is that it protects beneficiaries who are in law entitled because of their relationship with the deceased from the money disappearing into the pockets of someone else now my experience thus far is not great with bonds of cation but in actual claiming on it but it does seem that when you make that claim they say but you filled in the family tree without mentioning the illegitimate child of the deceased uncle you're stuffed because it was a you know a high faith claim document that you were making when you signed the insurance proposal and therefore you've failed on it and and therefore it's it's not appropriate that we the insurance company pay out so that's a practical problem with it although i would have said that i was relatively experienced these days in handling clients and trying to get information out of them there can be problems where they say oh but they've been ill for 20 years they must be dead by now which is a fair supposition but the health service keeps them alive or they didn't know about the illegitimate child of uncle such and such genuinely because often there it's relationships that you're going back a couple of generations so these cases probably aren't protected anyway because they weren't known about and they should put the you know the air searcher onto the job and therefore it's like the illusory what the protection is okay right john yeah back to the generalities of bonds of case and you said that they don't exist in in england wales is there a is there a consequence of that as there are a reaction to that is there a difference self evidence that there was doing the two legal systems but how the is do those who'd otherwise should have been beneficiaries is there an increased number of those who lose out shall we say i can't answer that mr scott because i'm not an expert in in english estates an english an english intestate estate you obtain letters of administration from the probate court um i don't know what information you have to give to an english probate court to get letters of administration you certainly don't have to give a family tree to a scottish commissary court which is the equivalent of the probate court to have an executor data have appointed so where there to be a where a situation to arise where there were no providers of bonds of case here in scotland would there be lessons to be learned and models to be learned from or copied even from the english situation that you would suggest to us there might well be but i'm not qualified to comment on that others i might say something in my response to the consultation on this one of the suggestions that i made was that there be as well as an inventory which is what's currently required which is the valuation of the estate in effect that's all that's required in order for an executor to be appointed if at that stage in in a simple estate if a statement of distribution was also included i don't think it would be that complicated and that would be an additional safeguard i mean just stepping back a little bit one of one of the astonishing things about succession is that nobody checks nobody checks who gets what and actually the whole rationale for bonds of cation are that it's it's an insurance against the wrong people getting their own amounts but actually in in most cases in most families this is going to be quite straightforward in an intestate estate if there's a spouse or civil partner they will take the holy state almost certainly if there are children or grandchildren they'll take the holy state so there are probably a fairly small number of estates where the distribution is complicated or relatives have to be searched for or there's an illegitimate child these are very much the exception in small estates that if the executor to take the inventory of the estate and also a statement of distribution that says this will be divided among the children and then the court can see that actually everybody knows what they're doing here the right amounts will go to the right people and i mean i think sometimes anecdotally succession law is very murky i think members of the public are not well educated about their succession rights despite it being on the Scottish courts website and the government website but anecdotally families sometimes think that it's up to them to randomly distribute the property of the deceased as they see fit especially if it's a small estate or it might be the first person who gets to the house so there are all sorts of things going on in succession law under the radar i think that it doesn't seem to me to be a complicated process to have the share of clerk look at the inventory and look at who it's going to in most cases i think that would be straightforward thank you on you go might also be helpful in the same sort of line as that is having in the commissary papers that the applicant gets is something telling them that misinformation in this will be treated by the sheriff as very serious because it hints at fraud and there are some cases where there's a hint of a contempt of court i'm not sure that a sheriff would actually take that approach but i think i agree in principle with what dr reed said the only point i would make there is you would surely require a slister to drop the statement of division which is taking us back to the stage where people in a small estate might require to instruct a slister i'm not sure you would i don't think it's rocket science i think that if the sheriff clerk is already involved in this process it's not unimaginable that the sheriff clerk could be trained to know within a family tree how an intestine estate is divided i don't think it's that complicated or a little computer model changes the figures as the sheriff clerk going to ask her for a family tree prepared by a genealogist then i mean in most cases the the close family will be known yes i mean here can i just ask the claimants question do forgive me very naive does the inventory cover both movable and fixed assets i just want to be clear about that thank you right chance on i think we're back with you um i think i should um just go to the final question that i have for you which is um can you explain to the committee your understanding of the purpose and effect of the amendments that the government has lodged and whether in your view they address the problem created by Zurich's decision to withdraw provision of bonds of occasion do you think there are any other routes the Scottish government could have pursued i guess we've kind of skirted round about that but if you'd like to put your response to that specific question on the record please that be really helpful i think i would just repeat what i said previously that i think there is an alternative for the majority of cases that could use the existing sheriff clerk involvement and given the small number of claims that are made on bonds of occasion um that it that may solve the vast majority of problems excellent thank you what the Scottish government have proposed because i think there is an immediate problem caused by the withdrawal of Zurich and i appreciate this is a quick fix but i think it's a very fair quick fix and i support it on the basis that again it's my understanding that more fundamental questions as to bonds of occasion across the board and whether or not sheriff should be given uh the right to say i'm not appointing a particular individual which they don't have at the moment it as long as you qualify as a beneficiary in the estate uh the sheriff has to appoint you and that means you get some very unprepossessing people appointed as executor's data i mean the classic example i've had this on more than one occasion client comes to you and says i need your help our mother died four months ago there's me and my older brother and my younger brother older brother was quick off the mark got to a slister has had himself discerned as executor data but me and my other brother don't believe he's a fit and proper person and i'll say well why do you take that view as your brother well he's not been in contact with the family for 30 years and he's been in jail four times for crimes of dishonesty we don't think he is the person to wind up mum's estate and i have to say to them that there's nothing i can do about that the most i can the best i can do because of confirmation has been issued it's a very much different state of affairs if confirmation hasn't been issued i could put in a petition for recall of the appointment of the older bad brother but the sheriff has no discretion in the matter and what he will do is where he sees that my client is up spilled about the thing he'll appoint them both he'll say right you're both executor's data and if they don't get on that's a recipe for a disaster so i support this as a quick fix on the basis that i would like to see more debate about the powers of sheriffs and whether or not one's occasion should be retained in connection with the second succession scotland bill which is obvious to going to have to be enacted have you anything you wish to hand i mean the my only thought is a long time ago as a law student you get told that delegated powers were not the best way of making good law that's what i carry through life but i don't know what the current view on that matter is is a different a different house i'm certain i could probably spend the whole of the rest of the of the day discussing whether or not that is currently a good idea or not or indeed fashionable currently i think i would agree with that as well i i think that's probably still the view that would be taken that it would be better for the parliament to make a decision that was in primary legislation and particularly in succession law which affects everybody it's the area of law that most affects the general public everybody has experience of death and i think it's undesirable for there to be well it's desirable for there to be as little discretion as possible within the operation of succession law i think if the rules are clear and certain then people know where they are and particularly in the aftermath of a bereavement you want that certainty within the law and indeed accessibility and accessibility and therefore it's in the primary legislation it's much easier for particular beneficiaries of small estates i think that that's probably takes us to the area that leslie granham was hoping to explore actually wasn't it thank you can i ask do you think it would have been possible to forgo pursuing this issue until a further success succession bill was brought forward in the next session well i think if you were the family of somebody who died with a small estate in the next few months you would find that at the rate that succession bills go through any parliament you might be waiting 30 years before you didn't need to employ a lawyer to get the bondification i exaggerate but it gives a quick remedy that's appropriate and for that i would welcome it those of us who've been waiting for a succession bill for a long time think that that it may not happen quickly and therefore a temporary solution probably is needed okay because of the market failure because of the obviously the cost of lawyers right yeah okay can i ask the next one is do you think there would have been benefit in further consultation on this matter well maybe it would be nice if surik had given us a year's warning and that would have allowed proper consultation but given where everybody is i think it has to be done and what's proposed is fine hi i think in the circumstances as i said it's a quick fix i think it's proportionate and fair okay i mean it certainly would be to be hoped that when the main succession bill comes along the delegated powers aspects of this could be revisited at that point okay thank you i think you'd be quite clear that this committee would endorse that view that we would rather have appropriate detail on the face of any bill i mean that is one of the drums that we have banged in this session clearly it won't be my committee now but i suspect our successor committee would feel roughly the same but of course it's always about an appropriate balance and sometimes when time is not on your side the balance is very definitely to get it in delegated powers john mason i think wants to continue yes thanks governor i mean i think especially dr raid you suggested that a lot of people the general public and beneficiaries may not be aware of what the rights are and what the processes are and all of this kind of thing i mean is this going to complicate it further or beneficiaries or they're already do they know nothing so it doesn't really matter or is it going to confuse things for beneficiaries as to there's no bond occasion where do they go how do they get their rights that kind of thing i mean i think i think there really is an enormous public ignorance about succession law and how it operates and most people probably find out from my website when someone dies what they need to do and are very much under the guidance of the court i suspect that won't be any change whether or not you instruct this list and if my memory serves me i think there is something in the the we leaflet what to do after death or what to do when someone dies that does direct people to solicitors if they feel that they need legal advice so i mean to take a legal advice or not to take legal advice is the personal choice of an individual but it's always there and available thank you i mean previously as we heard the government decided to postpone legislation on bonds of cation because there was this question as i think you said yourself Mr Kerrigan that what other protections should be in place and you know from trust bar we have specific suggestions as to what could be stated for example people who have unspent convictions for crimes or offences of dishonesty should not be executors dative i mean should more of that be on the face of the bill could that have been put into the face of the bill rather than giving ministers so much discretion i think that's a more complex question which is tied up with the second consultation document which was published in june the consultation document which was published in august 2014 the bill is a reaction to that document and the response is received the scottish government raised the question of bonds of cation and whether sherry should be given discretion to refuse to appoint in the first consultation document but because of the wide-ranging nature of the responses they decided i think quite appropriately they should re consult on it and that's what i understand is happening now now that the june 2015 consultation is now closed but we're waiting to hear what the responses were and how the scottish government's going to react so i think this more substantive law would be for the next succession scotland bill based on the government's assessment of the responses to the june 2015 consultation so we put this if we've put this legislation through just now that would give quite wide discretion but then hopefully that would be revisited when we look at another succession law that you're comfortable with that process well i mean i don't think what's proposed at the moment gives a share of discretion i was thinking more gave ministers more discretion oh yes sorry sorry yes yes i apologize no didn't put that very well perhaps are other folk happy with that as well i mean i think there are two sides of providing protection one is is the discretion about the executor which some of this focuses on and the other side of it is the protection in the division of the estate both are a form of protection i mean it would be possible to put them into this bill but possibly it would be done in too much haste depending on given the late stage that the bill is at it would probably be desirable to put it into the next succession bill i think yeah i mean i think as a committee we don't like very wide powers for ministers but i think what you're basically saying is given that the speed of this that's better to go down that route and then look at the specifics later on is that that's kind of what i'm saying yes okay that's fine thank you very much can i ask you the very specific question that i did actually put to the to the officials am i right in thinking that this does represent a slight increase in the risk of fraud but there is a compensating reduction in total costs i suppose the answer is there's a theoretical increase there's a theoretical opportunity for fraud there is always an opportunity for fraud in cases where i've had bondavocation in the course of the discussions with the the client we've discovered unknown family members who had a right on the succession now you don't get that if you have to do a family tree with an independent person over viewing it as long as the person is Scottish born and bred and their ancestors are Scottish born and bred but i hesitate to know what the situation would be with the people that are arriving as refugees just now how you would trace them and the evidence is that people that come like that in the past have done very well within one generation and their family tree can be extremely complex to to work out so you win and you lose it's maybe a reason for everybody having a will i don't think we've ever disputed that everybody should have a will and i think it's been suggested that as well as the document tells you what to do after a death there should be a document that tells you what to do before death yes and that would make much of this redundant thank you i think final comments are coming from stewart we're relatively brief convener i will make the observation as someone who has a certificate in a genealogy, paleography and heraldic studies that those who are easiest to do family trees for are the aristocracy and criminals so i merely i merely make that as an observate their lives are better documented than others let's let's merely let's me take your own family tree 38 generations thank you but but let's but let's return to the immediate to the immediate issue i think john kerrigan made a interesting point when he said uh the decision should be for an individual as to whether they take legal advice or not but in the circumstances which we find ourselves here uh a commercial company outside the legal system appears to be depriving people in certain circumstances of that particular choice uh and in that case should the legislation that we're contemplating now uh as an alternative to what's before us uh give the courts the discretion as to whether a bond of occasion should be required by assessing the circumstances as they see them and that's often a useful way of dealing with other things in the legal system i think uh the scottish court service said that it was 800 uh small estates uh um i'm a great believer in fairness across the board um and i would say that uh i think the risk of serious fraud is is small um and i'm i'm comfortable with this but i could see an argument as to why at this stage a sheriff might be given discretion but again i think that might be complicating matters unduly that's probably a decision for the wider discussion in respect of the next bill i think there's something that's completely omitted from our discussions on this and that is that depending how your estate is spread it may not actually be necessary for people with estates around the small estate to actually need confirmation because most of the UK high street banks will actually allow the money in the bank account to be handed out to somebody who appears as being the heir without anything more than them signing some sort of indemnity and usually without any special insurance charge being taken so that if you are fortunate enough to have 10 000 pounds in say Lloyd's TSB or whatever it's trading as just now then you'll get that money out but if you have your money in shares in Lloyd's banking group then you need confirmation in order to be able to sell the shares and that seems to me to be you know quite odd and if you can get the money out without confirmation then a lot of our concerns should be applying to that as well but is it is it correct however to say that while the possession of the money may be achieved by the process that the bank undertakes the legal entitlement to that money which is now in your possession remains pending until confirmation is taken place is that is that a reasonable statement for a layperson to make that's technically accurate if you don't have confirmation your class does something that's called a vicious intramitter in scotland now it's all in the textbook but it's never actually i've never actually seen it other than threatened at people it sounds really nasty so but the reality is that you get the money and then you pay it out to the people that you think are the ears and the people that think they are the ears can come and hassle you for the money if they know the bank account exists but i'm sure there's lots of estates that never go near the confirmation process because it's all in small bank accounts so just just to be clear then it is possible to wind up a small estate without any process of confirmation that is a legally permissible it's legally possible but you're up but i'm also hearing the suggestion that it's not uncommon in smaller estates is not uncommon now in the definition of smaller states you're using in this context is that the same as the definition we're dealing with in the context of the legislation each banking organisation and insurance company has different rules that apply to their assets so a lot of them are 20 000 pounds or under so if you had one bank account in that category you would be within the small estates definition sometimes they also require you to see what's a total estate sometimes they don't and these forms seem to change from from time to time sometimes insurance companies will ask you to give details of the family so that i think they can check that if they give the money to you they have some assurance that you will pay out the money to those in the family who are entitled to it your points and entirely fair one it is possible to take command of a small estate without confirmation there's a difference between who's entitled to those funds and who can take command of them and you're then relying on the person who takes command the good big brother who says my two younger sisters are entitled to a third of this each not the baddie that i mentioned to you earlier who's likely to go off to ten a reef for six months and then come back and say the money's gone do forgive me and remember i'm a lay person so my question may be hopelessly naive i'm now in a position of uncertainty as to in law when confirmation is actually required in the process of winding up in the state is there already a concise and accessible explanation of when it is required so to that is that in theory you should get confirmation on all occasions but the reality is that if the deceased had their money in the right things at the right time then you can gather the estate without actually having to get confirmation but you carry sorry do forgive me i just want to be absolutely as clear as it's possible for me to be but but therefore you will retain indefinitely the risk that in the absence of confirmation what you've done could be challenged that's correct right okay it's sorry doctor no one knows enough to challenge that's the truth um and i i think um a lot of succession law i repeat the point is operating under the radar um and out with the confirmation process completely and i made a freedom of information request to the statistical division of the scottish court service who record and also hmrc actually because the figures that are recorded in relation to estates are confirmed estates in scotland and those confirmed estates you can get information on you know small estates what proportion small estates are of those confirmed estates but when you actually look at the number of deaths in the country um the recorded confirmed estates is a tiny proportion of the number of deaths so in discussion with the statistical division we worked out um a rough estimate probably half of all deaths in scotland are not confirmed i think uh convener if anything we have merely confirmed that uh academics are in the business of giving us questions as much as they are as giving us answers i i i'm absolutely fascinated by where we've got to but i think but i think probably i think we've covered everything else i might reason yeah indeed thank you can i just thank you i think you have and i'm delighted that academics come along here and give us questions i mean i think that's absolutely part of the process so that's no criticism at all um can i just ask whether you feel there's any alternative way of getting some kind of scrutiny of who is given the power of an executive is there some other is there an alternative scrutiny method that would actually allow a sheriff to get the right kind of information assuming he's got a discretion are we missing something in the system whereby somebody can say that's a good idea or not at the present moment there's no requirement for intimation of the petition for the appointment of an executor on anybody with either a prior claim on the estate or an equal ranking claim on the estate and that might be something that could be looked at it's something that would have a i think a small cost implication to the court service because they need to check that everybody had been had received intimation but it would primarily be a responsibility on the applicant the petitioner to be executor but it wouldn't be unduly burdensome it's a letter sent right so if i've understood you correctly that would be along the lines of i want to present myself to be the executive i know i've got three brothers and a couple of grandchildren and i need to tell the court that i have actually written to those other people telling them that i'm putting myself in this position so they've got an opportunity to disagree with me yeah we could put into more legalese but that's fine yeah i'm not not good at legalese i'm afraid right okay in which case i'm wondering whether i could just pick up on what i think i've heard you suggest and then one further question but what i think i've heard you suggest is that there might be a greater involvement to the sheriff clerk in what goes on and that they might not just be the first port of call which who hands out the bits of paper and advice but i think i've heard you suggest that they might be in a position to provide some advice on who the the heirs might be i think they already are involved in the process in helping and below a certain value they're already involved in helping people to manage the process the inventory in the confirmation process and i think the suggestion of a family tree being included in that and then it would be then very easy to say this is the estate this is the family tree therefore there are very concrete rules therefore on the basis of those two documents here's who it should go to and that would be providing technical advice essentially from a court official it would be providing some level of supervision which i think in my view succession law is crying out for right well i guess what i'm trying to explore is whether you feel that would represent an increase in the duties of the court it's a question not for us but i fear any increase in workload would be noticeable and because the commissary process just now in some courts is not running quickly yeah can i can i reface the question i accept it's more work that wouldn't be i think a dispute i was just wondering whether it constituted an increase in the duties of the court or presumably not the powers of the court but are we putting a duty on on the court in in the person of the clerk to do something that they're not currently duty bound to do yes and that would bring a workload but i mean there are some commissary clerks who are very good and and who do give when somebody turns up with a small estate which obviously qualifies within the small estate procedure they give the people who turn up the lay people very good advice yeah so they're doing that already without having necessarily a duty to do so yeah i think there is already it's not a duty but there is certainly the information that's available to the public is the sheriff clerk will help you with this below a certain value and so it would be not a duty but part of that process of assistance it may require some additional training for sheriff clerks but it's not terribly complicated and actually what it would also allow is if that paperwork was in place which doesn't need to be terribly onerous it allows the sheriff to see that information when confirmation is being granted so i suppose the duty is on the sheriff rather than on the sheriff clerk yes with you john just developing that theme then if this was to become a duty of a service offered by sheriff clerks who would be a responsibility where not the standing the best of intentions poor advice to be given in such circumstances perhaps the government should invest in an app that could it could quite easily be programmed i think really yes and then it would be up to individual themselves to make the decisions rather than rely on the advice of a sheriff clerk there is always the back so i'm just looking at the liability because that's a bonus occasion about what about obviously in the first place we've kind of strayed off that but it always has to go before the sheriff never having been a sheriff clerk and never having been a sheriff my understanding is that if there is a case the sheriff clerk is uncomfortable about they will actually discuss it with the sheriff that does commissary work routinely without us being told that and that should presumably apply to lea applicants as well right thanks so much lawyer is negligent in the winding up of an intestate estate that is not of itself grounds for the case of paying out the beneficiaries have a claim against the lawyer the case will say that's nothing to do with us we we a bond of case is a an indemnity guarantee and cashiers i have heard if they've had to pay out because the executor has done something silly the first thing they do is the exercise what is known as the right of relief and they go against the executor to recover what they've paid out but they don't go against the solicitors for professional negligence that's covered by a different policy can i i think that probably has concluded everything that we wanted to ask possibly not everything that our experts wanted to say because it may be that you have some thoughts about drafting please i don't know who wants to lead on that good a couple of of thoughts not to change and anything really beyond the word order in clause five three b let's just give everybody the opportunity to find what they mean it reads presently regulations under the section may make provision in relation to be appointments of persons as executor data of particular descriptions i think it should be a point persons of particular descriptions as executor's data but that's on the basis that it would be removing people that had the criminal convictions from being executor's data if you don't don't get an executor data of qua criminal with you thank you i'm sure that's noted by those who hold the red pen i had great problems reading clause two two which was best legal mumbo jumbo it reads as at present moment as well as in relation to applications under section three of the small intestine states act made after the section comes into force the amendments made by subsection one applying relation to applications under that section of that act made before the section comes into force which are not by then determined the simple alteration would be where at the end where it says comes into force which are not by then determined if it was changed to came into force which were not by then determined that would help enormously i have a more substantive improvement which i can see reasons for for not doing that subsection two should read the amendments made by subsection one applying relation to applications under section three of the small intestine states act made after the section comes into force and to those made before the section came into force which were not by then determined so that i can let you have that in writing i think if you could give us a copy of those and indeed the government a copy of those folk might want to reflect on whether that's something that they they feel is is significant can i say i'm very grateful to you for your thoughts on that because these are the kind of things that can be important just just to make sure once again this lay person understands what's being said are you suggesting that the process should be changed after the process has started but before it's completed what is that the essence of what you said i'm trying to make it easier to read legislation i'm not trying to change what's proposed what's proposed is that in the future once this is law there's no need to get bonds of cation where you go to the sheriff clark but there will be cases between this becoming an act where with the timing of things if somebody goes the day after the act or the day before the act is passed you've probably missed the point that you can get a bond of cation from zoo rich if you've missed the bond of cation from zoo rich you've got to go to run raw sun alliance raw sun alliance says got to hire a lawyer if you hire a lawyer you're talking about probably a thousand pounds of extra costs so in order to get round forcing that this proposed the bill as drafted is saying in that little period if you just wait until this becomes an act the sheriff clark will not require you to have cation but technically you made the application under the old law so when the old law applied so therefore technically you should have cation and it's saying for these people we want it to slide under the new rules although technically we would be entitled to insist on cation but we know that's going to cost you extra money so we're saying this small group of people don't need to get cation i think what i'm hearing is a plea for retrospection which is not something we as legislators leap at with any great willingness well the retrospective aspect of it is actually in the in the draft bill right and if you're trying to ensure that the minimum costs are met by this group of relatively usually relatively poor people you've got to go along with it on this case and it's only a little narrow window there's probably only about 10 cases i don't know and we might argue it's not retrospection we might argue it's transitional actually because we're doing it we're doing it now and it's for the future but before we get to the next gate right thank you thank you for those suggestions can i ask us if you've anything else that you'd like to put on the record it's wonderfully good to see you here no it looks as though we're done i think colleagues are done in which case i'm very grateful and again i'll suspend this meeting for a while thank you very much indeed right resuming it's my pleasure to welcome paul wheelhouse msp the minister for community safety and legal affairs supported by jill clock and new emoji minister do you want to make any kind of statement on the basis of what you've just heard please before we go to question if i may can you know i apologize in advance it's a reasonably lengthy one but hopefully it'll put a number of things on the record and that will help the committee yep good afternoon everyone thank you for inviting me here today to talk about the bonds of occasion i appreciate the committee will have questions about the amendments we have lodged but i thought it might be helpful to take a little time to set out some background to our proposal some of what i'm going to say was set out in my letter 14 to january to the committee but i'm sure it will be helpful to place our approach on the record my officials have also provided the committee with a detailed note on the issues around bonds of occasion the Scottish law commission recommended that the statutory requirement placed on executor's data those appointed by the court usually because there's no will to administer an estate to obtain a bond of occasion should be abolished a bond of occasion is an insurance policy that protects the beneficiaries and creditors from loss caused by mal administration as we've just been hearing negligence or indeed fraud the Scottish law commission made this recommendation the basis of the financial and administrative burden these provisions create and the current difficulties which exist in obtaining bonds of occasion the cost the limited number of providers delays in issuing occasion and the conditions which provider sometimes attached to the bond we consulted on the abolition of bonds of occasion along with the other provisions which are in this bill it was sport for the abolition but it was clear that some alternative safeguards would be needed at least in some circumstances so we indicated that we would not abolish bonds of occasion without further consultation on the safeguards there are currently only two providers of bonds of occasion for executive purposes and they are Zurich and Royal Sun Alliance as we've been hearing Zurich has taken a business decision to withdraw from this market with effect from the first of February 2016 the sole provider with effect from first of February 2016 while Sun Alliance has a requirement that provision of a bond of occasion is a conditional on a solicitor being appointed to administer the estate Zurich did not have such a requirement the decision by Zurich was not anticipated and in real terms the period of notice is very short we were alerted to Zurich's decision by the Scottish courts and tribunal service who were concerned about the impact especially for small estates currently estates with a total gross value of less than 36,000 pounds are classed as small this threshold is subject to change from time to time an executor of a small estate may in certain cases employ a solicitor to get confirmation or obtain confirmation without a solicitor in the case of a of the latter there are simplified procedures in place and the chef clerk is able to assist as we've heard those who choose to seek confirmation without a solicitor avoid paying legal fees which have the potential to drain a small estate and a separate case has therefore already been made for them we have therefore had to act quickly and consider whether something needed to be done now and if so what would be the best solution we agreed that the impact of small estates is concerning and the obligation to instruct a solicitor in these circumstances could be a significant burden which has the potential to severely diminish and in some cases even drain a small estate for others the impact could create real hardship for example a widow dies perhaps without leaving a will she leaves a 19 year old daughter who's in tertiary education the living rented accommodation in her estate is valued at 10,000 pounds the mother has been saving over the years so that her daughter could go to university has been using her savings to fund her daughter's living and associated expenses the daughter will need all of the 10,000 pounds to complete her education the obligation to instruct a solicitor and the corresponding fees will mean that the daughter cannot afford to complete her education and all of the difficult time as we've heard when she's coming to terms the loss of her mother given the regrettable and somewhat precipitate withdrawal of Zurich we consider that it would be appropriate to exempt these small estates from the requirement to obtain bonds a bondification in these cases preserving as much of the estate as possible will make a real difference to the beneficiaries the amendments we proposed therefore focus on a small estate which is subject to the simplified procedure there's already a filtering mechanism in the court which means that if a small estate is contentious then it does not qualify for the simplified procedure the flip side of the coin is if the circumstances that a bondification would indemnify could still occur an executor data could distribute the estate incorrectly and a beneficiary loses out instead of that beneficiary being recompensed by the bondification they would instead have to make a claim against the executor if the executor has benefited from their maladministration then they should have the necessary assets to pay any damages due to the beneficiary a beneficiary may qualify for legal aid depending on their income if their loss is less than 3 000 pounds they could raise a small claims action which is a procedure which has been designed so that the solicitor is not required and costs are kept a minimum already in some small estates fund holders pay out without the need for confirmation the threshold varies depending on the fund holder and in those cases there will therefore have been no bondification in place and we're not aware that this creates problems there are also currently few calls on bondification and if for example in the instance that I outlined above where perhaps there was both a surviving son and a daughter and the son was estranged if the son applied to be the executor data for the aim of taking the full benefit of the estate it is likely that in these circumstances the daughter would also apply and because they were competing executors the estate would not qualify for the simplified procedure and there would be a requirement for a bondification and solicitor to be involved that is probably the right outcome in these circumstances to ensure that the estate is distributed properly we've had to balance impact of small estates with the need to protect beneficiaries but we consider that in all of the circumstances our proposal is proportionate and targets only the most vulnerable estates which are small in size and are uncontentious and therefore there is far less likely to be a concern about the distribution of the estate one provider in itself is also undesirable and whilst the remaining provider has given us assurances that it has no intention of withdrawing from the market we are not able to say what business decisions the remaining provider may make in the future we therefore needed a solution to deal with the possibility of the remaining provider royal son alliance withdrawing otherwise we will be in the position where a bondification is required as a matter of law before confirmation can be granted but there is no ability to obtain that bondification that is why we are also proposing to take powers in relation to the abolition of cation and the powers of court in relation to the appointment of an executive date if the future landscape is uncertain and we need to potentially deal with a range of matters but I do I did hear the concerns more generally about the use of delegated powers in this circumstance we therefore proposing a power though in this in this situation for Scottish ministers to set out further circumstances in which cation should not be required to be found including a power to abolish the requirement for cation altogether we're also proposing a power for ministers to be able to make regulations that set out conditions that must be satisfied or information that must be provided before the court appoints an executive date if we're also proposing a power that could require the courts to be satisfied that a person is suitable for appointment as executive date if the intention would be not to use the powers unless the remaining provider withdraws alternatively the powers could be used to reflect the outcome of further consultation on the issues which were identified by us as needing to be explored before bonds of cation were abolished finally the regulations could be used to deal with any issues that arise in relation to the abolition of cation for small estates the committee will no doubt be looking at these in the context of of their delegated powers role we also propose that the amendment should come into force immediately after royal assent to minimise any delays in confirmation that might be caused by zero withdrawal the abolition of the requirement of cation will apply in relation to any applications for cation which have not been determined before the amendments come into force scts has assured us that the small gap between the withdrawal of Zurich and the coming into force of the amendments can be managed by them administratively i would finally like to say something about the fact that committee is having to turn its mind to topic which is not featured in the bill to date and which amends the bill in a different way to the slc bill i'm entirely sympathetic with the view that this is an undesirable position to be in and i can very much appreciate whether committee are taking evidence today and this is not a situation i would envisage occurring even on a an irregular basis in the context of the scts law commission bill procedure situation is not one of our making but given the concerns about the impact of Zurich's decision it would have been remiss of the scts government not to act quickly and do what it could to try and remedy the position doing nothing would and just list to place a new and unwelcome burden on small unconscious estates leave the market further exposed should royal sun alliance also withdraw create a position where there could potentially be a situation where a legal requirement was incapable of being met resulting in estates being incapable of being wound up any delay in acting also impacts adversely on the public and also the operational ability of the Scottish courts and tribunal service so i'm sure the committee will agree that these outcomes are undesirable thank you thank you colleagues obviously want to ask questions i wondering if i could just start though by picking up on the first of all on the point you made about it coming in bringing in something that wasn't in the original bill i think we entirely understand why that is the case we do recognise that probably that couldn't have been in the bill as introduced but nobody seems to have any trouble introducing it later which is an interesting quirk of the process but that's absolutely fine and i think we entirely understand that would be the case could i just pick up though on the issue of a sole insurer without wishing to cast any aspersions a sole provider is obviously an economic advantage it was suggested earlier that the government might provide some kind of insurance it was also suggested i think that maybe the government was not in a position to do that whereas the Westminster government might be i'm wondering whether you can address that issue please minister well i think it's an important point i mean i understand that this point was made earlier on the current legal requirements are to be fact financially regulated would would discount the Scottish government from providing cation many considerations such as state aid because of the impact of commercial market tests and state aid a test sorry because of the impact of commercial markets and obvious financial budget implications as well Scottish government would also be involving themselves in what essentially a private matter and we're not sure that that would be appropriate or desirable from the government's point of view but i do hear the point that was made earlier on but i think the most fundamental thing is that Scottish government isn't regulated by the financial services authority and therefore wouldn't be able to actually provide the service that's what i'd expected i'm grateful for your advice can i bring in stewart first i think i'm sorry i just wanted to pick up and make sure we're not putting on the record something that might be misrepresenting the case early in the minister's remarks he talked about the case when the executive was not employed as a solicitor and that that would and i think i'm quoting correctly avoid paying legal fees i just wanted to be clear was that simply referring to avoid paying legal costs associated with employing a solicitor but there might still be fees associated with the confirmation process before the court so just for clarification it doesn't relieve the fees that the court might that is correct mr stevens is quite correct the we're referring to the cost of employing a solicitor rather than any fees associated with so the word costs would be better than fees indeed that's quite correct that's all i wanted to do john scott thank you forgive my naivety so the proposal put forward by dr read is not something that you would be in favour of because the courts are essentially the government is that what you're saying and therefore you wouldn't be encouraging share of clarts to to provide um whether not to be any providers where both of zurek and royal son alliance to withdraw dr read's proposal wouldn't be one that would find favour with you is that correct fortunately mr scott i was not i wasn't here during the discussion by dr dr read in terms of this point however i understood it was a reference to the Scottish government becoming an insurer effectively and so that's the perspective i've taken rather than courts and tribunal service but i would regard i think similar issue would arise for scts and not being financially regulated but i can ask perhaps my colleague joe clark to comment on that if it may perhaps she would because she heard all the evidence we are talking about the um public sector set stepping in as the share of clart so that so that would be supposed to be a functional government yes yes so that would not be a solution that would find favour with you not with the reason not for the mental reasons i said right thank you i'm the main question i wanted to ask was really have you received any adverse comment um from any source whatsoever about the proposed amendments only being in the public domain for a very short time or they may not even been in the public domain yet well with the exception of the comment that was made regarding the drafting of one of the clauses there we haven't had any negative feedback i believe we've had positive feedback from Scottish courts and tribunal service and the law society in terms of key consultees and i'm not aware of any objections having been lodged to the government at this point in time but i'd just confirm that with joe clark we're aware that trust bar have submitted a memorandum and they would like us to go further with in terms of discretion but we've not had any negative reaction and how do you view um the trust bar comments to to develop the discretionary element of the share well i certainly note that um you know we the debate that i just witnessed in regards to the second succession bill and clearly there are um there's more fundamental reform that could be undertaken at that point i think mr kerrigan fairly described this as a as a quick fix albeit i think he he was very positive in his remarks about it being a proportionate one and but if we had considered that this change of law was possible without the further consultation we've undertaken the bill would have been introduced with such a provision and that was that was not the case however there was no consensus around the detail of this issue and the resource impact too needed much more investigation and should we make provision for this in the in the future it will be on the basis outcome of the further consultation we've carried out which we've yet to to report back on and further discussion of the key stakeholders who may be impacted it's also worth remembering this change relates proposed change relates to the wider issue of abolishing bonds of cation for everyone and not to the narrow remedy we're making through these amendments to fix a particular situation that has arisen falling withdrawal of zero so you know it wasn't the the clearest cut area in terms of the consultation we've had today and clearly we needed to to engage with stakeholders further on what proposals we can take forward as to the more fundamental reforms around bonds of cation and we can do that through the second the second succession bill should that come forward Leslie Brennan. I just want to come back on the point that you've been asked twice about but obviously the situation where we are now with Zurich withdrawing on the 1st of February and we're only having one provider which obviously is a market failure and you would hope in the situation when there's a market failure that the government would step forward and we've heard that the the level of risk seems to be really pretty small you've got 800 cases of small estates and we've heard from the experts that very few people actually make any sort of claims against the bonds of cation currently so if if there was scope to to change the current regulations to make the Scottish government then the sort of the insurer almost of last resort in this case but given the level of risk is the amount that you're exposing is such a small amount because obviously that market doesn't exist in the rest of the UK I just wonder is there not a case for a Scottish solution because what doctor dot read the prescription issues outlining seems really pretty sensible that the the share of clerk would would put in a wee model there that with pretty low risk well certainly the point I mean understand the point that's been made but I think there's a couple of couple issues firstly as I said in my earlier remarks there's a fundamental issue that we are not allowed to provide insurance products as a we're not financially regulated by the financial services authority so and we don't have legislative competence in this Parliament to legislate in such matters so you know any such changes would have to take place within the UK Parliament but there's also the secondary issue that we'd be involving ourselves in a in a private private matter not sure that would necessarily be appropriate for for Scottish government in that circumstance I mean I'm happy to look at what was said earlier on by dot read but in terms of her evidence and obviously not having seen that I can't comment on on the detail of what she said but I think you know those are two key barriers that we need to we need to have a look at whether they could be overcome something the first one is the most fundamental one that we currently cannot provide insurance as we are not regulated by the financial services authority within Scottish government so we're not legally able to offer insurance products okay thank you I might have missed it because you've mentioned Sheriff Clark a couple of times and I didn't pick up what Dr Reid had said in connection with the government stepping in you know as a last resort insurer with a role for the Sheriff Clark could you explain what she did say because I've obviously missed it understanding was that obviously the the estate would go to the Sheriff Clark and they would obviously draw the family tree and what was the other bit about the distribution and the family tree yes so if there were any errors there then I suppose the liability would would dress them with the Sheriff then we would go to the Scottish government I suppose is what my interpretation I don't know whether I'm correcting my understanding of it I think certainly there's a there's possibilities in terms of improving the information that's available in the Sheriff Clark potentially having a role in looking at matters that is I suppose a distinct matter from whether you're insured by Scottish government as a sort of secondary issue this was the root of my question to the previous panel about whether that generated a duty on the courts to do something because the duty comes with the responsibility to get it right of course if they merely had a power to provide advice which manifestly they do then that doesn't make them responsible necessarily for the advice that they give which would appear to be the present situation and I just wanted to explore with with you whether you felt that we were in a perfectly sensible place at the moment recognising that probably there isn't a duty to provide that information and therefore there isn't actually a responsibility that covers the same as a bond application so if I'm reading correctly there will be a responsibility for courts and tribunal service in the event that there were some form of maladministration they hadn't picked up yes I'll take the point clearly we are trying to trying to ensure that the risks are minimised that there would be any any maladministration or fraudulent activity and the provisions we've put in there about ensuring that the the kinds of person that can be appointed as an executive data the executive data will also help reduce that risk too so there's a number of issues that we've done in our quick fix if you like to try and ensure that the the risk of of maladministration is reduced right okay thank you I do have colleagues who want to come in I'm just going to remind absolutely everybody we have only 20 minutes left I'm told that in the context of land registration there is a state indemnity scheme I'm not aware of that community we can look into that and see if that is that is the case well that might be for all parties to ponder as we go along thank you very much John thank you yes I mean the general point that's been made that there's quite wide powers given to ministers and I think the suggestion has been that's a balance between the the time speed that this needs to happen and thinking through all the details because we had some specific suggestions from trust bar especially about executors data and what might be excluded are you defending the the kind of amount of powers that ministers have been given at the moment yeah I mean I'm slightly nervous but I appreciate that it's not as far from ideal and I fully acknowledge that we have to move quickly because of the timescales we have for completion of the bill itself and I think it was a point fairly made by by previous witnesses that you know a suitable legislative opportunity would be some way in a distance so there's a there's a danger that if we don't act now we could find ourselves being put on the back foot if a royal son alliance were to change their position from the one they've told us that they were perhaps withdraw from the market we've been a very difficult position so obviously there's the first step to try and provide a suitable solution for the small estates under 36,000 pounds which we are we're doing and I'm more comfortable about that I think that that is a very proportionate and sensible step to make the obviously the second amendments really are regarding the additional powers to allow us to deal with at the time as should such a situation arise royal son alliance were to withdraw and I've absolutely no intention or ministerial colleagues have any intention of using that unless royal son alliance were to withdraw from the market when we're left in a left high and dry so it would allow us to move reasonably quickly rather than waiting for a subsequent primary legislative opportunity to do so right I mean on that point if you were to continue as minister in this position obviously nobody knows what's going to happen how high a priority would the next succession bill be I mean what can I we're talking two years five years 10 years any idea well certainly it's it's not not my gift to to announce the government's legislative programme if we are reelected I would stress but certainly we we have given commitment to to consult which we have done on the Scottish law commission's more substantive proposals we are obviously committed to reporting back on that consultation and it would intend to take forward any measures that we feel suitable to go forward with in the next parliament but beyond that I'm afraid I'm not a liberty to really determine the the schedule of of of bills in the next parliament could we have a small matter of an election to get through first yeah it could be some time ahead in other words and my final point then ailey scoby gave some specific amendments which I don't know if you've I'm having a head round them so I don't know if you have but I mean have you any comments on that at all well we're happy to look at that there's obviously a process issue to understand how we would maybe amend the amendments at stage three perhaps a manuscript amendment or some other process would be required but we'll happy to look at that understand that professor scoby is going to provide the the draft wording to to yourselves and to the Scottish government so we'll have a look at that and see if it needs to be fixed okay thank you if the Scottish government has approached royal and son alliance about their willingness or not to continue providing bonds of cash we have yes we have consulted them recently about their future plans in light of zero's decision and they have confirmed they have no plans to withdraw from the market and we'll continue to provide bonds of cash but we'll also continue to require a solicitor to be appointed as a condition of providing a bond that's entirely their their right to do so of course i'm not questioning that and you know we we certainly have no reason to believe they will withdraw from the market I clearly have a clear field now in terms of being the only player in the market but we would certainly try and continue to engage with them so that if their plans do change that we're given as much notice as possible thank you I think there are a couple of the things that perhaps just worth putting on the record though i'm not sure that that really require a response first of all there was the suggestion that those who were seeking to become executive data should be required to intimate that fact to any obvious alternative applicants i'm wondering whether that might be put into the mix somewhere in at thoughts about the future and equally I think there was a general point made about public understanding of the whole issue which i think is absolutely fair because i've got to say that i really knew very little about it and until we got to having to look at it in this committee and i'm quite sure that 99.9 something percent of the population are in the same place certainly on the latter point i think i'm a record before agreeing with the convener that as you put it what to do before death would be a good thing to do in terms of guidance to members of the public to ensure they are aware of how law of succession works and how they need to prepare for scenarios to look after the loved ones in the event of their death so i think there is a general need to improve awareness of legal provisions for for members of the public and that cuts across a number of areas but succession as Dr Reid said is absolutely fundamental to us all because at some point we're all touched by by death unfortunately and therefore this law does have a profound impact on us all um in relation to to the other point um i think that uh which remind me convener the point that's being made relation to oh yes information i suppose to beneficial yes yes yes i suppose it in in a theoretical sense that would be that would be certainly attractive to ensure that there was a degree of communication between those who are affected by uh by potentially being a role of the sector of data but in practice as we heard um from Mr Kerrigan there there may be examples where estranged brother sisters etc may not talk to each other and may have absolutely no desire to collaborate with each other uh supposed to be uh if there was a requirement to do it rather than a than a nice to do um that might be uh might change matters um but it's uh yeah there's a personal there's certainly a cost regarding that in terms of 40 pounds to 60 pounds per intimation uh and we're looking at that as part of our wider consideration of the law succession okay it sounds like an awfully expensive letter but i'll take your your advice on that i think if i was the person who was writing those letters i'd be feeling fairly rich um right i'm wondering on the happy note whether stewart wants to yes please um in the minister's introductory remarks he said we've only planned to exercise the powers under secretary of legislation in the event of withdrawal of the final provider would he care to indicate that he would also consider using these powers if the conditions that that final provider associates with the provisional bondification become in the view of the government unduly onerous that that's a very fair point i suppose we know indication i should stress that the royal sun alliance will abuse their monopoly position but should that arise then i'm i presume that we would be in a position that we could do something about it with these powers so that's a fair point it's not what we were assuming i should stress i have no reason to believe that rsc will not act in an honorable way in this respect but um we do have the power yes to address that issue indeed thank you i think that indicates that everybody feels they said everything they need to say i do you want to add anything minister or do you only just to reiterate the point i you know i regret the fact we're having to do this at this stage in the bill um but i'm very grateful for the committee's very short notice taking additional evidence to ensure that this issue is properly aired and scrutinised before coming before the chamber so i appreciate the the time and effort that's been put in by yourselves and your clerks and indeed the witnesses in coming forward today thank you and that gives me an opportunity to thank absolutely everybody involved for their efforts and at that point i'll move this meeting into private thank you