Chapter 61 - Judicial factors - Part II - Applications under section 11A of the Judicial Factors (Scotland) Act 1889
Application of this Part
61.16 . This Part applies to a petition under section 11A of the Judicial Factors (Scotland) Act 1889( a ) (appointment of a judicial factor on estate of person deceased).
Form of applications under section 11A of the Judicial Factors (Scotland) Act 1889
61.17. A petition to which this Part applies shall include averments stating-
(a) the name, last known address and date of death of the deceased person;
(b) the reasons for the appointment being necessary;
(c) the interest of the petitioner, including-
(i) if a creditor, the nature and amount of the debt, how constituted, vouched or established, or
(ii) if a person having an interest in the succession to the estate, the nature of that interest;(d) details of the estate of the deceased person so far as known to the petitioner including heritable and moveable property, any stock in trade, interests in any business or partnership, debts owed to or by the deceased and any other relevant facts;
(e) the names and addresses of all persons known to the petitioner as having an interest in the estate either as creditors or in the succession to the estate, and the nature of the interest in each case; and
(f) the name, designation and address of the person nominated to be the judicial factor.
Intimation and service of section 11A petition
61.18 . The order for intimation and service under rule 14.5 (first order in petitions) in a petition under this Part shall include a requirement for-
( a ) 1889 c.39; section 11A was inserted by the Bankruptcy (Scotland) Act 1985 (c.66), Schedule 7, paragraph 4.
(a) a notice of the petition in the Edinburgh Gazette in Form 61.18; and
(b) service of the petition on such persons named in the petition as personal representatives of the deceased who are not parties to the petition.
Interim appointment
61.19 . The court may make an interim appointment of a judicial factor in a petition to which this Part applies when the petition is presented or at any time thereafter.
Notice calling for claims
61.20 .- (1) In order to ascertain the claims on the estate, the judicial factor shall, within 14 days after he has received the official certified copy of the interlocutor appointing him, place a notice in the Edinburgh Gazette, and in such other newspaper as he thinks fit, in Form 61.20.
(2) The judicial factor shall lodge in process-
(a) a copy of each newspaper containing the notice under paragraph (1); or
(b) a certificate of publication by the publisher of each such newspaper stating the date of publication and text of the notice.
(3) The period within which a creditor shall intimate a claim on the estate to the judicial factor shall be 4 months from the date of publication of the notice under paragraph (1).
Claims
61.21 .- (1) The judicial factor shall examine the claims of creditors in order to ascertain whether the debts are properly due from the estate of the deceased, and may-
(a) call for further evidence in support of the claims;
(b) if he thinks fit, require a creditor to constitute such claim by decree in a competent court in an action in which the judicial factor shall be called as a defender.
(2) For the purpose of ranking and payment of creditors, the date of the appointment of the judicial factor shall be deemed to be equivalent to the date of sequestration.
Custody and inspection of inventory of estate, etc.
61.22 . There shall remain in the possession of the Accountant of Court and be open to inspection, within his office, by any creditor or person in the succession of the deceased-
(a) the inventory of estate, when adjusted and approved by the Accountant of Court and signed by him and the judicial factor;
(b) any report of the state of debts; and
(c) all subsequent accounts submitted by the judicial factor to the Accountant of Court.
Administration, deathbed and funeral expenses
61.23 .- (1) Out of the first funds realised by him, the judicial factor shall reserve sufficient funds to defray the estimated costs of his administration including the legal expenses of the judicial factory.
(2) On the expiry of the period for lodging claims, the judicial factor shall be entitled to pay out of such funds, with the prior approval of the Accountant of Court, those debts listed in paragraphs (a) to (e) of section 51(1) of the Bankruptcy (Scotland) Act 1985( a ) (order of priority in distribution).
( a ) 1985 c.66.
(3) The Accountant of Court shall prepare a written report on the state of funds and any scheme of division containing such observations as he thinks fit for consideration by the court.
(4) The Accountant of Court shall issue the report under paragraph (3) to the judicial factor.
Procedure where there are creditors
61.24 .- (1) Where claims are lodged, the judicial factor shall-
(a) where funds remain available for division after payment of the claims referred to in rule 61.23(2), prepare a state of funds and scheme of division amongst the creditors; or
(b) where no such funds remain after payment of those claims, prepare a state of funds only.
(2) The judicial factor shall-
(a) lodge with the Accountant of Court-
(i) the state of funds and any scheme of division,
(ii) all relevant writings and documents; and(b) provide the Accountant of Court with such explanations as he may require.
Notice to creditors
61.25 .- (1) As soon as the report of the Accountant of Court under rule 61.24(3) has been issued, the judicial factor shall-
(a) lodge in process that report, the state of funds and any scheme of division;
(b) send to each person who has lodged with him a claim on the estate of the deceased a notice by first class post, or, if that person is furth of Europe, by air mail, stating-
(i) that the state of funds and scheme of division or state of funds only, as the case may be, and a report have been lodged in court; and
(ii) the amount for which the creditor has been ranked and whether his claim is to be paid in full or by a dividend and the amount of it; or
(iii) that his claim has been rejected; or
(iv) that no funds are available for division;(c) place a notice in Form 61.25 in the Edinburgh Gazette; and
(d) if-
(i) any person, other than a person who has lodged a claim with him, is stated in the application or in the books, deed of settlement, or other papers of the deceased, to be a creditor of the estate or has an interest in the estate, or
(ii) he has reason to believe that any other person is either a creditor of the estate or has an interest in the estate,
give notice to such person, by first class post or, if that person is furth of Europe, by air mail, that no dividend is allotted to him in the scheme of division.
(2) Any creditor or person having an interest in the succession to the deceased's estate shall be entitled to examine-
(a) the state of funds and any scheme of division lodged in process; and
(b) the claims and supporting vouchers or evidence lodged with the judicial factor.
Approval of state of funds or scheme of division
61.26 .- (1) Any creditor or person having an interest in the succession to the estate of the deceased who is dissatisfied with the state of funds or any scheme of division may lodge in process a note of objection within 28 days after the date of the notice given under rule 61.25(1)(b) and, until the expiry of that period, the court shall not approve the state of funds and any scheme of division.
(2) Where a note of objection under paragraph (1) is lodged, the court shall dispose of the note after hearing any objector and the judicial factor and making such investigations as it thinks fit.
(3) If any objection is sustained to any extent, the necessary alterations shall be made to the state of funds and any scheme of division, and shall be approved by the court.
(4) Where no note of objection is lodged, the court shall approve the state of funds and any scheme of division.
Payment following approval of scheme of division
61.27 . After the court has approved a scheme of division, the judicial factor shall pay, deliver or convey to the parties the sums or other property to which they are entitled under the scheme.
Partial division on first scheme of division
61.28 .- (1) Where, in the opinion of the judicial factor, a partial division of funds among the creditors who have claimed may be made with safety in the interests of all concerned, the judicial factor may, with the approval of the Accountant of Court, prepare a state of funds and first scheme of division as soon as possible after the period for lodging claims has expired.
(2) The following provisions of this Part shall apply to a state of funds and first scheme of division prepared under paragraph (1) of this rule as they apply to a state of funds and scheme of division prepared under rule 61.24(1)(a):-
rule 61.24(2) (lodging of state of funds etc. with Accountant of Court),
rule 61.24(3) (report by Accountant of Court on state of funds),
rule 61.25 (notice to creditors),
rule 61.26 (approval of state of funds or scheme of division) subject to paragraph (3) of this rule.
(3) Subject to paragraph (4), the court may, not earlier than 6 months after the death of the deceased, approve the first scheme of division and, where it so approves, the judicial factor shall pay, deliver or convey to the parties the sums or other property to which they are entitled under the first scheme.
(4) Out of the funds there shall be retained and deposited in an institution authorised under the Banking Act 1987( a ) or other appropriate institution a sufficient sum to meet-
(a) the amount of the claims of creditors whose debts have not at that time been admitted by the judicial factor, or whose debts are future or contingent; and
(b) the full amount of such debts as are claimed as preferable but the priority of which is not admitted by the judicial factor.
Procedure where no creditors
61.29 . Where, on the expiry of the period for lodging claims, no creditor has lodged a claim, the judicial factor shall not lodge a state of funds but shall prepare a report with regard to the disposal of the surplus estate in accordance with rule 61.30.
Disposal of surplus estate
61.30 .- (1) Where, after payment of the creditors, there is a surplus, the judicial factor shall lodge with the Accountant of Court a statement of-
( a ) 1987 c.22.
(a) the amount of the surplus;
(b) the parties claiming that surplus and their respective grounds of claim; and
(c) those parties who, in the opinion of the judicial factor, are entitled to the surplus and the reasons for his opinion.
(2) The Accountant of Court shall prepare a written opinion on the statement of the judicial factor lodged under paragraph (1) and issue that opinion to the judicial factor.
(3) On receipt of the opinion of the Accountant of Court under paragraph (2), the judicial factor shall-
(a) lodge in process that opinion and the statement prepared under paragraph (1); and
(b) give notice to each party claiming an interest or apparently entitled to any part of the estate, by first class post or, if that person is furth of Europe, by air mail, that-(i) the statement of the judicial factor and the opinion of the Accountant of Court have been lodged in process; and
(ii) should any such party wish to lodge any objection to the statement, he shall lodge a note of objection with the Deputy Principal Clerk within 28 days after the date of the posting of the notice by the judicial factor.
(4) On expiry of the period for lodging objections under paragraph (3)(b)(ii), the court, on considering the statement, opinion, and any note of objection and, after such procedure as it thinks fit, shall-
(a) determine which parties are entitled to the surplus estate and direct the judicial factor to make payment accordingly; or
(b) if the court considers that it is desirable that the judicial factor should continue to administer the surplus estate, direct the judicial factor to do so.
