Written Question · S3W-32618 · Session 3
Whether it plans to review legislation relating to bonds of caution.
The question
To ask the Scottish Executive whether it plans to review legislation relating to bonds of caution.
The answer
Requirements for bonds of caution are in a number of areas of legislation including in relation to executors of estates under succession law, judicial factors and adults with incapacity.
On executors, the Scottish Law Commission published a Report on Succession in April 2009. This recommended that: the general requirement upon an executor-dative to obtain caution before he or she may be confirmed as executor should be abolished; the court should no longer have power to order caution to be found by an executor-nominate and the court should not be given a discretionary power to order caution to be obtained by an executor. The Report and the Scottish Government''s initial response are available on the Commission website at:
http://www.scotlawcom.gov.uk/html/reports_2000-2009.php.
Going forward, as outlined in the answers to questions S3W-29780 on 8 December 2009 and S3O-9233 on 21 January 2010, the Scottish Government is embarking on a programme of dialogue and formal consultation on the Report on Succession, so that determination of the way forward can take account of all relevant perspectives. All answers to written parliamentary questions are available on the Parliament''s website, the search facility for which can be found at:
http://www.scottish.parliament.uk/Apps2/Business/PQA/Default.aspx.
On judicial factors, the Commission is due later this year to issue a discussion paper which will invite opinions on a review of the current legislation with a view to clarifying and simplifying it. Thereafter, the Commission will consider the issues raised and in due course publish a report. The recommendations will be considered by the Scottish Government when that report is received. More information on the Commission''s work on judicial factors can be found on their website at:
http://www.scotlawcom.gov.uk/html/cpjudfac.php.
There are no current plans to review bonds of caution requirements in the Adults with Incapacity (Scotland) Act 2000.
On executors, the Scottish Law Commission published a Report on Succession in April 2009. This recommended that: the general requirement upon an executor-dative to obtain caution before he or she may be confirmed as executor should be abolished; the court should no longer have power to order caution to be found by an executor-nominate and the court should not be given a discretionary power to order caution to be obtained by an executor. The Report and the Scottish Government''s initial response are available on the Commission website at:
http://www.scotlawcom.gov.uk/html/reports_2000-2009.php.
Going forward, as outlined in the answers to questions S3W-29780 on 8 December 2009 and S3O-9233 on 21 January 2010, the Scottish Government is embarking on a programme of dialogue and formal consultation on the Report on Succession, so that determination of the way forward can take account of all relevant perspectives. All answers to written parliamentary questions are available on the Parliament''s website, the search facility for which can be found at:
http://www.scottish.parliament.uk/Apps2/Business/PQA/Default.aspx.
On judicial factors, the Commission is due later this year to issue a discussion paper which will invite opinions on a review of the current legislation with a view to clarifying and simplifying it. Thereafter, the Commission will consider the issues raised and in due course publish a report. The recommendations will be considered by the Scottish Government when that report is received. More information on the Commission''s work on judicial factors can be found on their website at:
http://www.scotlawcom.gov.uk/html/cpjudfac.php.
There are no current plans to review bonds of caution requirements in the Adults with Incapacity (Scotland) Act 2000.
In the Official Report
No contribution in the Official Report cites S3W-32618 by reference.