LINKS
IN TITLE
QA.
Does the Keeper accept the use of a Will as a link in title to heritage,
where the testator has died since the commencement date of the Succession
(Scotland) Act 1964?
A.
The authorities are divided on this point. The Keeper therefore
judges individual cases on their merits, although the use of Confirmation
as the link is always preferable. If the Will contains a general
conveyance to the Executor (rather than a direct bequest to the
beneficiary), the Keeper may accept it as a link in title for a
conveyance by the Executor, provided he is given evidence of the
testator's death and satisfactory assurances that there is no risk
of challenge. Such assurances might, for instance, include Affidavits
that the testator did not grant a subsequent Will or explanations
as to whether there would be other potential beneficiaries on intestacy
if the Will were set aside.
QB. I have a Disposition granted by
the two remaining partners of a firm, where the title was taken in
the name of five partners as trustees for the firm. What links in
title will the Keeper require?
A. The Keeper will expect to see evidence that the three former
partners have died, or that they have resigned as trustees in accordance
with Section 19(1) of the Trusts (Scotland) Act 1921. It is important
to ensure that resignations comply with the statutory requirements
for resignation as a trustee; evidence of resignation as a partner
of the firm is not sufficient.
QC. For a Disposition by trustees ex officio of a club, what
evidence is needed of the appointment of the trustees?
A. The Keeper will require to see evidence of the appointment or
election of the current office bearers to the positions that entitle
them to act as trustees. Minutes of the meetings at which the appointment
or election took place are normally sufficient, but the Keeper may
require to see the club's constitution as evidence of the method
by which trustees are to be appointed. In addition, if the club
has changed its constitution since it acquired title, the Keeper
will need evidence of any change that provides for the trustees
to be the holders of offices other than those specified in the title.
QD. Is a deduction of title needed in a Disposition that induces
first registration?
A. Section 15(3) of the Land Registration (Scotland) Act 1979 makes
a clause of deduction of title unnecessary in a deed relating to
an interest which is already registered. This provision does not
apply to deeds executed before the interest is registered, so in
a Disposition leading to first registration a deduction of title
should still be included. However, the Keeper's practice is to overlook
errors or omissions in deductions of title in such cases, provided
that the links in title themselves are in order.
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