LEGAL GLOSSARY
The Scottish Legal System can seem really confusing at times, and although it can be important for the correct terminology to be used, plain English is always better. Here’s where you can find out more about the most common terms I come across in my work.
If you're interested in learning more,
A
Action
An Action is the proceedings raised by a person, the Pursuer, in a civil court
Ad Interim
In the meantime, a temporary order
Affidavit
A signed statement made on oath, a sworn statement which the Court can rely on instead of witnesses having to turn up to give evidence.
Advocate
A member of the Scottish Bar, equivalent of the English “Barrister”
Affirmation
The undertaking by a witness, with no religious belief who does not want to swear an oath, to tell the truth when giving evidence in court or by affidavit.
Amiqus
Amiqus is a digital identity verification tool, used to conduct Identity Checks and Photographic ID verification.
AML
Anti-Money Laundering (AML) is a range of legislation that must be complied with when solicitors engage with clients, requiring ID Checks, and financial verification in certain circumstances.
Answers
A written statement setting out the basis on which a court action is opposed.
Attorney
A person acting on behalf of another person with their written authority, known as Power of Attorney.
Aver
To state, in a Writ. Averments are the facts that a person is offering to prove to the Court.
Advice and Assistance
The type of legal aid funding for the very initial advice from a solicitor, right up to, but not including, raising a court action. More information is available here.
Bankruptcy
Where a person is unable to pay their debts, either they or their creditors can apply to the Court for their bankruptcy. This process allows the debtor to clear their debts, with a view to starting fresh. It does have serious consequences, so is not a decision to make lightly. A person who is bankrupt cannot be appointed as Continuing (Financial) Attorney in a Power of Attorney. Bankruptcy in Scotland is also known as sequestration.
Beneficiary
A person who will benefit from the terms of a deed, such as a Will.
Bond of Caution
Where the court appoints a party or other person to find caution (a sum of money as security), this may be done by depositing cash, or by arranging a bond with an insurance company. It ensures that money is available in the event that the security is required. Note 'Caution' is pronounced to rhyme with station. This is most often seen in cases relating to Financial Guardianship Orders, and in some Executries.
B
Capacity
Capacity is a person’s decision-making skills and competencies. Capacity can vary on a day by day basis, and is not a “have” or “have not” assessment. A person may have capacity to make some decisions for themselves – e.g. what to wear, who to spend time with, how to spend their time – but not be able to make bigger, more complex decisions, such as where to live, how to pay their bills, whether to accept medical treatment.
Capacity applies to every legal matter, but is most often discussed in relation to Guardianship and Intervention Orders.
Caution
A form of security, see Bond of Caution
Civil Legal Aid
The type of legal aid funding that covers raising, or defending, a court action relating to a civil legal matter. More information is available here.
Curator ad Litem
A person appointed by the Court to look after the interest of a party to proceedings who does not have capacity to act for themselves. The appointment is limited to the proceedings at issue – it does not continue, or spread, to other areas of a person’s life.
Clio
Clio is the Legal Practice Management Software used by S T Law, allowing your case to be managed efficiently and securely electronically.
Commissary Court
The Court which deals with Executors when dealing with the estate of a deceased person, including appointing an Executor when there is no Will.
Confirmation
The formal title granted by the Commissary Court to an Executor, to allow the Executor to gather and distribute the deceased’s estate.
Contentious
An issue which has caused or is likely to cause an argument is contentious, or in dispute.
Conveyancing
The transfer of legal title of real, or heritable, property from one person to another, or the process of granting another person a security or mortgage over your property.
Counsel
Another word for an Advocate at the Scottish Bar.
C
Decree
The final order or judgement pronounced by a Court.
Defences
The same as Answers – the written statement setting out the basis on which a court action is opposed.
Domicile
The place where a person is considered by law to have their permanent home. It is a concept most often used to determine which legal system applies to an individual, and is relevant in matters of personal law, and often in relation to working out their tax liability too.
D
Executor
The legal representative of a deceased person’s estate, whose duty is to administer the deceased’s estate, implementing either the terms of the Will, or the laws of succession if there’s no Will.
Executor Dative
This is the Executor appointed by the Court where there is no Will, or no valid Executor appointment in the Will.
Executor Nominate
This is the Executor nominated by the deceased in their Will.
Eik
Pronounced “eek”, this is an additional inventory of a deceased’s person’s estate, not covered in the initial Inventory for Confirmation.
Estate
The whole worth of an individual, including all land, property, financial investments, cash, belongings, etc, as well as all debts or liabilities owed by that person.
Executry
The process of winding up the estate of a deceased person in accordance with a Will, or with the law of intestate succession.
Exizent
Specialist software for managing estates and the confirmation process used by S T Law.
Extract Decree
An Extract Decree is issued by the Court after the time for appealing a Decree has passed. The Extract Decree is the formal version of the Decree which is enforceable.
E
Guardianship Order
This is a court appointment which authorises a person to make decisions on behalf of an adult with incapacity, in accordance with the Adults with Incapacity (Scotland) Act 2001. The Order can include power to make financial decisions, or personal welfare decisions, or both. An adult is anyone over the age of 16 years old. More information is available here.
Guardian (of children)
A person with children under 16 years can appoint another person in their Will to become Guardian to their children, in the event of their death. Although most commonly appointed in a Will, a Guardianship Appointment for children can also be made as a standalone document.
G
H
Incapacity
See also Capacity. Incapacity is used to describe when a person is unable to make their own decisions.
Incapax
Another way to describe a person with incapacity – for example, an adult with incapacity may also be described as the incapax adult.
Inheritance Tax
Inheritance Tax is a tax on the estate of a person who has died, where the value of that estate is more than the threshold (currently £325,000). Every person has the threshold in their own right, and sometimes any unused threshold can be transferred to their spouse or civil partner, meaning most married couples or civil partnerships have a joint threshold of £650,000. There are many reliefs and exemptions applicable to inheritance tax, and if your estate is likely to be more than £325,000 for a single person, or £650,000 for a married couple, you might benefit from specific inheritance tax planning advice.
Initial Writ
The written document by which Court proceedings are initiated in civil legal matters.
Interlocutor
A formal order made by a Court, setting out its decision.
Interim
In the meantime, most often used to describe a temporary court order.
Intervention Order
Similar to a Guardianship Order, but used only for a one-off action or decision, not for ongoing, repeat decisions. Most often used to sell a person’s house. For more information, see here.
Intestacy
Intestacy is where a person dies without having left a valid Will. It also covers what happens if there is a Will, but there’s a problem with it. Intestacy Rules are set out in legislation, and cover who can apply to be appointed as Executor Dative, as well as who will inherit the deceased’s estate.
Inventory
The list of the deceased’s estate, used by the Executor when applying for Confirmation
I
Jurisdiction
The power of a court to entertain or deal with particular cases, determined by factors such as location, or district, or the value or type of the case.
J
Land Register
The main register of ownership of land or property in Scotland, since 1981. More information is available here.
Law Society of Scotland
The professional governing body for solicitors in Scotland. Find out more here.
Lawyer
A solicitor or advocate, qualified, and authorised to practice Law in Scotland.
Least Restrictive Option
This is a concept most often heard in Guardianship and Intervention Orders, usually along with minimum intervention. Where courts are being asked to make such orders, they have to ensure that they are the least restrictive option for the Adult, that the order should be the option that restricts the person’s freedom as little as possible.
Legacy
A gift left to another person by a deceased person’s estate
Legitim
The part of the legal rights in a deceased person’s moveable estate, which is payable to their children.
Legal Aid
A source of funding, managed by the Scottish Legal Aid Board, which allows persons who are eligible to receive funding assistance for legal matters. See also Advice and Assistance and Civil Legal Aid. More information is available here.
Legal Rights
The rights of a surviving spouse, civil partner or children to a share of a deceased person’s moveable estate, whether the person dies with or without a Will, are known as Legal Rights. Legal Rights exist because of the view in Scotland that a person should not be able to disinherit their spouse or their children.
Liferent
A liferent is where a deceased person leaves the use of an asset, heritable or moveable, to one person for the remainder of their life, but the ownership to another. For example, a person might leave their share of a jointly owned house to their partner in liferent, but to their children in ownership. This allows their partner to continue to live in the house for the rest of their life, after which, the children will be able to use or sell their share of the house.
L
Mental Health Officer
A specially trained social worker who has certain legal duties in relation to Guardianship and Intervention Orders, including preparing reports about the suitability of a proposed guardian, and the powers being asked for.
Mental Welfare Commission for Scotland
The Commission has certain statutory duties in relation to people with learning disabilities, mental illness, dementia and related conditions, ensuring that they are treated fairly, have their rights respected and they receive appropriate support to live the life of their choice. The Commission’s duties include visiting people, monitoring the Acts relating to disability and mental illness, investigations, information, and advice. Further information is available here.
Minimum Intervention
Similar to least restrictive option, this is a concept most often heard in Guardianship and Intervention Orders. Where courts are being asked to make such orders, they have to ensure that they are the minimum interference in an Adult’s freedom to make their own choices needed to achieve the benefit for the Adult.
Minute in Proceedings
A Minute is used where proceedings have already been raised, to either change the proceedings, or restart the proceedings. For example, where a Guardianship Order has already been granted, but now needs to renewed, or varied, the renewal process will be done by a Minute, rather than a new Initial Writ.
Missives
The legal contract used to transfer land or buildings from one person to another.
Moveable Property
Property which can move or be moved, including money, furniture, clothing, jewellery, debts, animals, cars, shares, investments etc.
M
Next of Kin
The survivors of a class nearest in degree to another person. Next of Kin is used to identify the classes of persons, such as spouse, children, siblings, parents, but being Next of Kin does not provide a person with any legal decision making rights.
Notary Public
A public officer who serves the public in non-contentious matters, usually in relation to estates, deeds, powers-of-attorney, etc. Main functions include administering oaths and affirmations; taking affidavits and statutory declarations, and witnessing and authenticating the execution of certain classes of documents.
N
Oath
In court proceedings, or in relation to an affidavit, the undertaking by a witness to give truthful evidence. See also Affirmation, for person with no religious belief.
Office of the Public Guardian
The Office of the Public Guardian maintains the public register of Powers of Attorney, Guardianship and Intervention orders, and authorisations under the Access to Funds Scheme. The Public Guardian also has a supervisory duty in relation to Financial Guardians. More information about the Public Guardian is available here.
Ordinary Action
All Sheriff Court civil actions, other than Simple procedure, summary cause and summary applications, are known as Ordinary Actions. Ordinary Actions include actions for divorce in certain circumstances.
O
Power of Attorney
A written document in which a person authorises another person to make decisions on their behalf, either on an ongoing basis (for financial decisions only), or in the event of a loss of capacity at some point in the future (for financial and/or welfare decisions). More information about Powers of Attorney is available here.
Production
An article or document produced as evidence in court, such as a medical report in an application for Guardianship Order.
Prior Rights
In an intestate estate, the surviving spouse has certain rights to the deceased’s estate, known as Prior Rights, including a right to share of a house owned by the deceased, a share of the furniture and plenishings of the house, and a cash sum. The values of these shares are set out in law, and the cash sum will depend on whether there are also any surviving children. Prior Rights can only be claimed by a surviving spouse or civil partner. A cohabitant cannot benefit from a deceased’s estate in this way.
Pursuer
The person who initiates a civil court action.
P
Residence Nil Rate Band
An inheritance tax exemption which applies where a deceased person’s home is passing to a direct descendant, i.e. a child, grandchild, or great-grandchild. This is currently worth £175,000 and where the property is jointly owned by spouses, one spouse can transfer their share to the surviving spouse, meaning a house worth up to £350,000 can be passed on without paying inheritance tax.
R
Safeguarder
Where an application for a Guardianship Order is opposed, either by the Adult with Incapacity themselves, or by another party, perhaps a family member if the application is being made by the local authority, the Court may appoint a Safeguarder to the adult. The Safeguarder’s role is then to carry out enquiries amongst the interested parties, prepare a report, and advise the Sheriff of the Adult’s views and any recommendations the Safeguarder reaches about the application.
Sasines Register
The old register of land and buildings in Scotland. Prior to the introduction of the Land Register in Scotland, all land and buildings were registered on the Sasines Register. Some properties still are, particularly if they have not been sold for a long time. More information is available here.
Scottish Legal Aid Board
The body responsible for the administration of the Legal Aid Fund in Scotland. More information can be found here.
Scottish Legal Complaints Commission
An independent body set up to handle complaints from consumers about solicitors in Scotland. More information can be found here.
Sequestration
The Scottish word for bankruptcy.
Sheriff
The person with the lawful authority to make decisions about court cases in the Sheriff Court.
Survivorship Destination
Where a house is owned jointly with another person, sometimes it will be owned by “Mr Smith and Mrs Smith, equally between them and the survivor of”. This phrase, “and the survivor of”, is known as a survivorship destination, and it means that when one of the joint owners die, their share automatically passes to the other one, without any other legal work needing to be done. On the downside, it means that the joint owner cannot make alternative provision for their share of the property in their Will.
S
Testate
Used to describe an estate where the deceased left a Will.
Title Deeds
The written documents relating to land or property, showing ownership, and a detailed description of the property.
T
Vest
Property vests in a person when it becomes theirs, when ownership transfers to them.
V
Warrant
The formal authority from the Court to cite a person in relation to a civil court action.
Will
A written document setting out a person’s wishes as to how their estate will be distributed after their death. Wills must be written, and there are other particular conditions that must be met in order for the Will to be considered valid, and beyond challenge, but even a simple handwritten note can be considered an indicator of a person’s wishes in certain circumstances.