Trust & Executries

Petition for Appointment of Executor Dative by Dennis Murray, DP3/2012, 15 March 2012

Tue, 24 Apr 2012 10:52:40 GMT

This is a Note by Sheriff A G McCulloch in the matter of a petition for the appointment as executor dative by Dennis Murray.

Mr Murray is one of four children of the deceased. The widow of the deceased was made the subject of a guardianship order. Mr Murray was appointed as her guardian.

As the widow’s prior rights would exhaust the whole estate of the deceased, the normal procedure would have been for the widow or her guardian to be appointed as executor dative. However, the guardianship order in this case unusually did not contain a power for the guardian to make an application for appointment as executor dative.

The Sheriff explained in his Note that the problem here was the current commissary practice. The current practice is to treat the surviving spouse whose prior rights exhaust the whole intestate estate as the sole person with the right to be appointed executor. The Sheriff noted that this appeared “to be a misunderstanding, or misreading, of the provisions of section 9(4) [of the Succession (Scotland) Act.]“

The Sheriff’s Note outlines the relevant part of section 9(4).

The Sheriff held that “… those other than the surviving spouse may seek in these circumstances to be decerned executor dative.”

Gordon Turner v John Turner, 7 March 2012 [2012] CSOH 41

Thu, 12 Apr 2012 18:10:00 GMT

This case concerns a matter that had not previously come before the Scottish courts.

The facts of this case were not in dispute and were set out in a joint minute agreed by the parties. Miss Isabella Gordon granted a Power of Attorney in 1996 in favour of her solicitor. This included the power to sell any part of her estate. In 1997 she executed a Will in which she bequeathed her home in Stonehaven to John Turner. In 2001 Miss Gordon became incapable of managing her own affairs and moved into a nursing home. Her Attorney sold her home later on that year. Miss Gordon died in 2008.

The question for Lord Tyre was whether the legacy of the house was “adeemed” or was it “converted”, so that the beneficiary is entitled to a sum equivalent to the proceeds of sale of the house.

“Where the subject matter of a bequest (whether heritable or moveable) has been disposed of by the testator so that it no longer forms part of his or her estate at the date of death, the bequest or legacy is said to have been adeemed and therefore cannot take effect.”

Lord Tyre also made the following point: “In contrast to the doctrine of conversation, the intention of the testator is not regarded as relevant to ademption.”

The crucial point here appeared to be that the parties agreed the following:

“The sale of the house by [the attorney] was a prudent act of administration, having regard to the disadvantage in leaving the house empty with attendant maintenance costs. It was not a necessary act, not having been an act which [Miss Gordon] as principal, had she been sui juris ["full legal capacity"], would have been constrained to effect, there being sufficient other funds available to meet the costs of [Miss Gordon's] care.”

Lord Tyre held that as the sale of the house by the Attorney was a prudent act of administration rather than a necessary act to fund Miss Gordon’s care, the legacy was not adeemed by the sale. John Turner was therefore “entitled to receive a cash equivalent to the proceeds of sale of the house.” In addition he is entitled ”to receive a sum representing the fruits of these proceeds during the period since the date of receipt of the sale proceeds.”

One last point on expenses. Lord Tyre agreed that both parties were entitled to their expenses from the executry estate.

Philip William Howard v Sir John Philip Howard-Lawson BT, (2011) EWHC 63 (Ch)

Mon, 02 Apr 2012 20:37:00 GMT

The England & Wales Court of Appeal has ruled that a baronet’s failure to adopt the ancestral family name within a certain period of time did not disqualify him from inheriting the family castle.

The background to this case is Corby Castle in north Cumbria. Sir John Howard-Lawson inherited Corby Castle in 1962 and sold it for £2.5m in 1994. Corby Castle had been the family seat for around four hundred years.

His own son Philip Howard later demanded around £1.5m from the sale proceeds. Philip’s argument was that his father had not complied with the archaic terms of a will executed by his great-grandfather Philip John Canning Howard. In particular he argued that his father did not change his surname to ”Howard” and adopt the family coat of arms within the deadline referred to in the will. A deadline of one year had been included in the will. Such “name and arms clauses” were traditionally used by the landed classes to keep the family name and arms linked to the estate.

The Court of Appeal held that as his father had at least applied to use the family surname and coat of arms before the deadline, he had complied sufficiently with the will’s terms. The College of Arms had not granted his father these rights until after the one year deadline. Interestingly a court had decided in 1961 that Sir John’s father, William, had not met the deadline imposed by Philip John Canning Howard.

Philip Howard lost his case in the England and Wales High Court and now the appeal too. It is reported that he intends to take this matter to the Supreme Court.

Mrs SC for Judicial Review of a decision of the Service Personnel and Veterans Agency of the Ministry of Defence Outer House, Court of Session, [2011] CSOH 124

Tue, 13 Sep 2011 13:36:00 GMT

The background to this case is a family dispute. In this case the dispute is over where the body of Private Mark Connolly (MC) will be buried. MC’s mother wishes to have him buried in Methil. His wife wishes him to be buried in Forfar.

The petitioner in this matter is the widow of MC. MC died on 14 May 2011 whilst on a training course in Germany. MC named his mother and brother as his executors in his will. MC’s widow is entitled to all of his estate under his will and therefore has the right to be named as executor dative if neither of the named executors wishes to be appointed as such.

It appears that the MOD initially wished to release MC’s body to MC’s widow and it was only when MC’s mother disputed the funeral arrangements, and after looking at MC’s will, indicated that they would now release the body to MC’s mother. At that point the Forfar funeral arrangements were almost complete.

MC’s widow maintained that although MC did not leave written instructions regarding his funeral he made his wishes known to her. MC told her that he wished to be buried but not in Methil. He wished to be buried wherever he and his wife were settled. They had settled in Forfar.

The MOD indicated its change of mind in a letter to MC’s widow dated 6 June 2011. It is respect of this letter that MC’s widow sought judicial review.

Lord Brodie began by looking at the competency.

“Critically, nothing in the letter of 6 June 2011 affects the rights or interests of anyone and indeed it does not purport to do so. It neither constitutes nor expresses a decision. All that there is in the letter is a statement of intention to transfer custody of the body to the other party that the writer of the letter understands is entitled to its custody as a matter of law. Whether or not that understanding is correct, neither the writing of the letter nor the implement of the intention expressed in any way alters parties’ respective rights or interests. Were it to be the case that the petitioner is entitled as a matter of law to demand custody of the body, neither the letter nor a transfer to the second respondent in implement of the intention expressed in the letter would affect that. Put shortly, in my opinion there is nothing here to judicially review. I recognise that in similar circumstances in England that courts may take an approach to applications for judicial review which is more pragmatic and closer to what parties would have wished me to do here ..., but the nature of the equivalent English jurisdiction is different from that in Scotland.”

Although Lord Brodie decided to dismiss the petition as incompetent he decided to address the petitioner’s claim that the decision of the MOD contravenes her rights under article 8 of the European Convention of Human Rights. Indeed Lord Brodie went as far as to say that: “I may be wrong on my conclusion as to competency.”

Article 8 claim

Article 8 of the Convention provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

MC’s wife contends that her article 8.1 rights are engaged because the decision of which she complains deprives her of the opportunity of taking custody of her husband’s body, arranging his funeral and determining where he is interred.

Lord Brodie split his analysis into three parts. (1) Whether there had been interference with the petitioner’s rights under article 8.1, (2) whether any interference was according to law and (3) whether such interference was justified by any of the other provisions of article 8.2

Interference

On the question of whether there had been interference, Lord Brodie proceeded “upon the basis that transfer of the deceased’s body would amount to an interference with her article 8.1 right to respect for family life.”

According to law

Lord Brodie then discussed what he thought was the position under both English and Scots law.

Under English law the executor has priority when it comes to funeral arrangements but that this right may be restricted by the courts. Lord Brodie noted that there is no direct authority on this point under Scots law.

The case of Evans v McIntyre was discussed in great detail and Lord Brodie referred to Sheriff Scott’s comments in that case:

“On the basis of the authorities to which I was referred and the submissions I heard, I would see that there is no question but that a confirmed executor or someone who entitled to be confirmed as an executor and who intends to seek confirmation (the prospective executor) is a lawful custodier of the body of a deceased for the purpose of burial.”

Lord Brodie however did not feel “that matters are as cut-and-dried” as in Evans and noted:

“The fact that he [the executor] pays does not make him responsible for arranging the funeral. It is the surviving spouse and next of kin (not the executor) who have rights to solatium for unauthorised interference with the dead body.”

“Thus, in Scots law, I would see near relatives as well as the executor or prospective executor as having rights and interests in respect of the body of the deceased. The nature of these rights is not the same.”

“Determining what are appropriate funeral arrangements by reference to the quality of relationships within a family appears to me a task for which the court is quite unsuited.”

The “intends to seek confirmation” wording from the Evans case is also important as interestingly Lord Brodie was not certain that MC’s mother would be appointed as executor due to her answer to his question on her being confirmed as executor. MC’s mother said she would take legal advice before deciding.

Other provisions of Article 8.2

“To respect the rights of both he [the MOD] cannot avoid favouring one.“ Lord Brodie felt that the MOD were in an impossible position and that its actions were justified under Article 8.2.

In summing up Lord Brodie said:

“The first respondent [the MOD] may therefore lawfully transfer the body of the deceased to the second respondent [MC’s mother] but he may also lawfully transfer the body to the petitioner [MC’s widow]. Nothing in his decision should be construed as an expression of preference of my part of the position of the second respondent [MC’s mother] over that of the petitioner [MC’s wife].”

Conclusion

Although Lord Brodie held the petition to be incompetent he helpfully continued with his analysis of the matter. Lord Brodie saw that the MOD were in an almost impossible position here. Whatever it did the other party would feel aggrieved. Lord Brodie’s analysis of the law is also helpful and in particular that although the executor, or prospective executor, does have the power to decide on the funeral arrangements so does the next the kin.

One final point. I was surprised that more was not made on the fact that MC only appointed his mother and brother as executors because of erroneous advice from the army. The army it was claimed had told MC that it was not appropriate to appoint the same person as executor and beneficiary.

Special case for Patrick Charles Young's Trustees & Patrick Andrew Young and others & Patrick Charles Young's Executors [2010] CSIH 84

Thu, 04 Nov 2010 23:18:01 GMT

On 27 September 1929, Colonel Patrick Young CBE executed a trust deed, which set out three main purposes. The first of those was the payment of the annual income of the trust fund "to or for behoof of my said children and the survivors and survivor of them equally among them....for their alimentary use...and for their maintenance, education and upbringing". His children were to receive an alimentary liferent until, in the case of sons, they came of age, or, in the case of daughters, they married. At that point they were each to receive capital of £4,000, to support the sons at the outset of their careers and provide the daughters with a dowry. Once all the surviving children had received their capital payment, any remaining balance was to be distributed among the survivors.

At the time when he executed the trust deed, the trustor had six children, and no further children were born. The trustor died in 1951. All three of the trustor’s sons reached the age of majority. All had died at the time of the action, without leaving any issue. Two daughters married and remained living. A third daughter never married, but died in 2007.

The court heard a special case on whether the balance of the trust funds should now be distributed following the death of the trustor’s unmarried daughter in 2007. It was noted that this would leave the balance of the trust funds payable in equal share to the trustor’s two surviving married daughters. An alternative view was advanced that the purpose in question would have no application, since the trustor's surviving children did not all attain majority in the case of sons, or marry in the case of daughters. On that view, the balance of the trust fund would be payable to the trustor's executors, to be distributed as part of his estate in accordance with his will.

In rejecting this latter argument, the court noted the basic purposes of the trust were clear. Evidently, the trustor intended his children to enjoy an income until they came of age, in case of sons, or married, in the case of daughters. At that point, they would lose the income, but would receive a lump sum. Once the surviving children were all of age, or all married, the trust would be wound up and any balance of the funds distributed. That is because the earlier trust purposes would be exhausted once there was no surviving child who might yet satisfy the conditions for entitlement to a share of capital. That situation came about upon the trustor’s daughter’s death. The court noted that so long as she was alive, she was entitled to income until her marriage; and she might yet marry and become entitled to capital. Once she had died, all the surviving children were daughters who had married, and that therefore, the trust purpose in question (distribution of the balance of trust funds) applied.

Roberts (FC) (Appellant) v Gill & Co Solicitors and others (Respondents), [2010] UKSC 22

Thu, 20 May 2010 17:23:50 GMT

On 25 August 2006, the Appellant applied to amend his claim so as to continue it both in his own personal capacity and on behalf of the estate. The First and Second Respondents resisted the application on the grounds (a) that the amendment was barred as being out of time under section 35 of the Limitation Act 1980 (‘the Act’) and rule 19.5 of the Civil Procedure Rules (‘the CPR’), and (b) that there were no ‘special circumstances’ which entitled the Appellant, as a beneficiary, to continue the claim on behalf of the estate.

The High Court refused the application, holding that there were no special circumstances. The Court of Appeal held by a majority that there were special circumstances but that the amendment was timebarred. The Appellant appealed.

The Supreme Court unanimously dismissed the appeal. Lord Collins gave the leading judgment, dismissing the appeal on the basis that the amendment was time-barred. Lords Rodger and Walker agreed with the entirety of Lord Collins’ judgment. Lords Hope and Clarke declined to decide the case on the grounds that the amendment was time-barred but nonetheless ruled in favour of the First and Second Respondents on the ground that there were no special circumstances which entitled the Appellant to carry on the claim on behalf of the estate.

Andrew Battenberg and Others v. Firm of Dunfallandy House and Others [2010] CSIH 41

Thu, 20 May 2010 14:53:06 GMT

Reclaiming Motion:- On 24 March 2009 decree of absolvitor was pronounced by the Lord Ordinary at a continued hearing on the motion roll. Here the second pursuer reclaimed in so far as the decree concerned the claims advanced in the action by the second pursuer. When the case called in court on 24 March 2009 the first pursuer was present in person but the reclaimer and the third pursuer were not represented because their solicitors had withdrawn from acting. The Lord Ordinary granted absolvitor in so far as the action was laid at the instance of the first and third pursuers on the basis that:- "The basis on which I granted that motion was that the first pursuer and the third pursuers had failed to lodge caution of £10,000 as a condition precedent of proceeding further with the action as ordered by Lady Dorrian's interlocutor of 3 July 2008." In relation to the basis upon which the Lord Ordinary granted absolvitor in so far as the action proceeded at the instance of the reclaimer is concerned:- "So far as the second and third pursuers were concerned, there had been no appearance on their behalf at the continued hearing of the motion on 24 March … in light of the deplorable procedural history of the case, in which a Closed Record should have been lodged by 7 March 2007…granted decree of absolvitor also insofar as the action was laid at the instance of the second pursuers and found that the non-appearance of the third pursuers against the procedural background of the action constituted an additional reason for absolvitor insofar as the action was laid at their instance." Here the reclaimer provided the court with information concerning the circumstances in which the reclaimer came to be unrepresented at the hearing on 24 March 2009 and, in particular, the circumstances of how a faxed communication from the reclaimer's firm of solicitors in New South Wales, faxed on 24 March 2009, in which the reclaimer sought a continuation of the application for a week to enable a new solicitor to attend, appears not to have reached the Lord Ordinary in time for the hearing on that date. Here the court considered whether the appellate court had its own discretion in deciding whether to recall a decree pronounced in default and, if it did have such a discretion, whether decree of absolviter should be pronounced given all of the circumstances.

Shirley Anne Manning v. Margaret Downie Manning [2009] CSIH NO.67

Thu, 23 Jul 2009 14:26:00 GMT

Appeal from the sheriff court:- In 2003 David John Manning died leaving his estate to his widow, the defender and respondent, as sole executrix. The pursuer and appellant, the deceased's daughter, sought to exercise her legal rights in respect of the deceased's moveable estate and was told by solicitors acting for the respondent that she was entitled to around £25,000. The appellant was dissatisfied with the valuation of her rights and, in 2006, she made a Summary Application under Section 1(1) of the Administration of Justice (Scotland) Act 1972 in Dunfermline Sheriff Court. By interlocutor dated 10 March 2008, the Sheriff dismissed the application as being "neither competent nor relevant" on the ground that the requirements of Rules 3.1.2 and 3.1.3 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 had not been complied with. By interlocutor dated 23 May 2008, the Sheriff found the appellant liable to the respondent in the expenses of the cause on the solicitor and client scale. Here the appellant appealed against both interlocuters. It was accepted that Rules 3.1.2 and 3.1.3 had not been complied with, however, it was submitted that those rules did not apply, the only relevant provision being Section 50 of the Sheriff Courts (Scotland) Act 1907 which related to summary applications. It was submitted on behalf of the appellant that the application should not have been dismissed as incompetent, and expenses should not have been awarded against the appellant. It was conceded on behalf of the appellant if the application was correctly dismissed as incompetent, then there were no grounds for recalling the interlocutor on expenses. The issue for the court here was whether Rules 3.1.2 and 3.1.3 applied in these types of applications where the pursuer was seeking to recover documents before an action had been raised. Here the court considered whether the Sheriff was correct in holding that the application was incompetent.

Price and Others v Baxter – Hamilton Sheriff Court, March 2009

Thu, 21 May 2009 18:24:00 GMT

The Pursuers were relatives of the late Peter Baxter ("the deceased"). The Defender was his widow. The deceased and the Defender were married in 1990. The deceased made a will in 1999 leaving his entire estate to the Defender and did not make a subsequent will. He and the Defender separated in 2005 and then entered into a Minute of Agreement. The Pursuers sought Declarator that the deceased had died intestate; that by virtue of the Minute of Agreement, the Defender had renounced any and all claims against the deceased, including any claims arising on death; that the estate of the deceased should be distributed according to the rules of intestacy in terms of the Succession (Sc) Act 1964, but without the Defender being entitled to any benefit; and interdict against the Defender from seeking to be confirmed as executrix or otherwise intromitting with the deceased’s estate. At debate the Defender's principal argument was that the action should be dismissed as the Pursuers’ averments in relation to the revocation of the will, and also in relation to renunciation and discharge of any rights to inherit or to be executor, were irrelevant. The Pursuers’ position was that the Minute of Agreement had expressly revoked the will. There was no mention of the will in the Minute of Agreement, however, nor did it contain any testamentary intention. In addition, it contained no provision for the estate of the deceased. On that basis, the Defender argued that the Pursuers could not discharge the onus on them to prove that the Minute of Agreement had revoked the will. The Pursuers relied on several clauses in the Minute of Agreement in support of their contention that the Defender had renounced and discharged any claims to the deceased’s estate. The Defender's position was that, although, in terms of the Minute of Agreement, she had renounced or discharged any claims arising from the breakdown of the marriage, this did not extend to claims arising in other ways. All that the Defender was doing was accepting a gift made mortis causa. The discharge in the Minute of Agreement did not impose an obligation on the Defender to refuse to accept such a gift or to act as executor. The Pursuers sought a Proof Before Answer and argued that the intention of the parties in entering into the Minute of Agreement should be considered.The language of the Minute of Agreement was such as to expressly revoke the will. It was only by hearing evidence that the Court could determine if the Minute of Agreement was intended to, and did, revoke the will.The Pursuers submitted that a contractual document, like a Minute of Agreement, was capable of revoking a will. In order to revoke the prior will, the Minute of Agreement had to have testamentary intent. They argued that clauses in the Minute of Agreement contained elements of testamentary intention in that there was a clear indication that neither party was to receive any further sums from the other.The Sheriff had to determine whether there had been an express revocation of the will in the Minute of Agreement and whether, in terms of the Minute of Agreement, the Defender had renounced or discharged the rights which she acquired in terms of the deceased’s will.

Thorner (Appellant) v Majors and others (Respondents), [2009] UKHL 18

Wed, 25 Mar 2009 11:15:00 GMT

The appellant, David Thorner, is a farmer who, for nearly 30 years, did substantial work without pay on the farm of his father’s cousin Peter Thorner. The judge found that from 1990 until his death in 2005, Peter encouraged David to believe that he would inherit the farm and that David acted in reliance upon this assurance. In the event, however, Peter left no will. In these proceedings, David claims that by reason of the assurance and reliance, Peter’s estate is estopped from denying that he has acquired the beneficial interest in the farm. The judge found the case proved but the Court of Appeal reversed him.

The House of Lords unanimously allowed the appeal and restored the decision of the judge. The judge had found not only that it was reasonable for David to have understood Peter’s words and acts to mean that “he would be Peter’s successor to [the farm]” but that it was reasonable for him to rely upon them. These findings of fact were sufficient to support the judge’s decision.

David Longmuir v. Margaret Moffat [2009] CSIH 19

Tue, 10 Mar 2009 17:10:00 GMT

Appeal in Stated Case under Section 3 of the Administration of Justice (Scotland) Act 1972:- The appellant and his parents entered in to a partnership dated 24 June 1976 for the purpose of conducting the business of farmers at Netherfield Farm, Coalburn, Lanarkshire. The partnership was dissolved by the death of Margaret Longmuir on 2 April 1994. The respondents are the three sisters of the appellant and executors dative of the deceased Margaret Longmuir. Due to various areas of dispute between the appellant and the respondents arbitration proceedings took place and following a proof in October 2006 and a hearing on the arbiter's Draft Final Award on 11 December 2006, in accordance with agreed procedure the appellant required the arbiter to state a case for the opinion of the court here. The following questions were stated for the opinion of the court:- "(1) Whether a properly registered heritable title which is not otherwise impugned or subject ex facie to any qualification as to the real right of ownership, may nevertheless be successfully contradicted by a body of extrinsic or circumstantial evidence (including the inclusion thereof in the balance sheet of a Farming Partnership's Accounts), some of which evidence has been construed or found to have somewhat contrary effect?; (2) Whether in the whole circumstances of the Arbitration, the deeming provision contained in the Partnership Act 1890 Section 21 falls to be rebutted?; and (3) Whether, in the whole circumstances of the Arbitration, I am correct in exercising a discretion as to Expenses, and exercising that discretion in the way proposed by me?"

The Scottish Charity Regulator v. M.E. Foundation [2008] CSOH 62

Thu, 24 Apr 2008 06:11:00 GMT

Charities and Trustee Investment (Scotland) Act 2005 - Petition:- The petitioner is the holder of the Office of the Scottish Charity Regulator ("OSCR") and was formed under the Charities and Trustee Investment (Scotland) Act 2005. In terms of section 1(5) of the 2005 Act petitioner's general functions are:- (a) to determine whether bodies are charities; (b) to keep a public register of charities; (c) to encourage, facilitate and monitor compliance by charities with the provisions of the 2005 Act; (d) to identify and investigate apparent misconduct in the administration of charities and to take remedial or protective action in relation to such misconduct; and (e) to give information or advice, or to make proposals, to the Scottish Ministers on matters relating to OSCR's functions. Here the petitioner averred that the directors of the respondents, a charitable company whose objects include the relief of suffering and stress of people suffering from Myalgic Encephalomyelitis ("ME"), had been guilty of misconduct in the administration of the charitable company. The misconduct related to various intromissions of funds related to the charity's two shops to which members of the public donated goods and money. The respondents did not accept the misconduct claim. Here the petitioner sought an order sequestrating the estates and assets of the charitable company and the appointment of a judicial factor, together with the removal of the persons concerned in the management or control of the charitable company. Counsel for the petitioner invited the court to rule that certain averments made by the respondents should not be admitted to probation. Counsel for the respondents invited the court to allow a further hearing on the petition as a proof before answer on the whole averments reserving all pleas meantime.

Louise Lavery v David Alan Lavery – Aberdeen Sheriff Court, 7 February 2008

Wed, 05 Mar 2008 11:51:00 GMT

Minute of Agreement – meaning of term “whole right, title and interest”

The Pursuer/Respondent was the Executrix-Dative of her mother, who died in 2005. Her mother and the Defender/Appellant were married and had purchased a house. The Disposition in their favour recorded that the property was disponed to them “equally between them and to the survivor of them”. When the Pursuer’s mother and the Defender separated they entered into a Minute of Agreement. In terms of the first clause of that Agreement, the Defender agreed to convey to the Pursuer’s mother his “whole right, title and interest” in and to the former matrimonial home. A Disposition was prepared to transfer the title from the Pursuer’s mother and the Defender to the Pursuer’s mother alone. The Defender signed the Disposition, but the Pursuer’s mother died before doing so. It was accepted that, as a result of the survivorship clause in the title, the whole property became vested in the Defender. The Pursuer then asked the Defender to implement a Minute of Agreement by conveying the whole property to her. He refused to do so and the Pursuer raised proceedings. The Defender’s position was that, as at the date of the Minute of Agreement, he owned a one half pro indiviso share of the property and that, in terms of Clause 1 of the Minute of Agreement, he was only obliged to convey that interest alone to the Pursuer. Following a Debate, the Sheriff found in favour of the Pursuer. He held that Clause 1 of the Minute of Agreement obliged the Defender to convey to the Pursuer’s mother, not only his one half pro indiviso share in the property, but also his contingent right to succeed to her share in the event that she died before him. The Defender appealed and the point argued at the Appeal was whether, on a true construction of the Minute of Agreement, the Defender’s obligation under Clause 1 was to convey to the Pursuer’s mother both his existing one half pro indiviso share in the property and his right to succeed to her share if she predeceased him, or whether he was only obliged to transfer his existing share to her. The Sheriff Principal confirmed that the critical question was what was meant by the expression “whole right, title and interest” in Clause 1 of the Minute of Agreement. He was persuaded that the Sheriff had reached the correct conclusion and refused the Appeal.

Gillian Thompson, Accountant in Bankruptancy v Stella Rae Sneddon + The Keeper of the Register of Scotland [2008] CSOH 11

Thu, 24 Jan 2008 14:44:00 GMT

This case was at the instance of the Accountant in Bankruptcy who was the permanent trustee on the sequestrated estate of Matthew Sneddon. The first defender was his mother to whom he disponed his half share of the property for no consideration. It was registered in the Land Register of Scotland kept by the second defender (for whom there was no appearance in this action). The Trustee was challenging the alienation. The mother was pleading one of the statutory defences and the Trustee responded by saying that the mother had made no relevant averments in her defence. Here, Lord McEwan had to consider the issue relating to the property in that unless there were relevant averments that on the date the property was registered the son's assets exceeded his liabilities the mother's defence could not succeed.

Arlene Greenan v. Amanda Courtney [2007] CSOH 200

Wed, 19 Dec 2007 17:52:00 GMT

Expenses:- Here the first defender enrolled a motion for expenses awarded against her as an assisted person to be modified to nil. The motion was opposed on the basis that her conduct during the litigation did not justify modification of the expenses to nil. It was submitted on behalf of the pursuer that conduct did not have to be extreme for modification to be refused and that the conduct in the case here was serious enough to prevent modification as:- (1) a counter claim was raised and abandoned within weeks by the first defender; and (2) the pursuer enrolled a motion for summary decree that was withdrawn on the basis of an averment by the defenders of which there was no foundation. Here the court considered whether the conduct of the first defender amounted to improper conduct and whether modification to nil should be granted.

William James Bilsland Forsyth and Another v. National Kidney Research Fund and Others for Directions [2006] CSIH 35

Thu, 23 Aug 2007 00:00:00 GMT

Petition - Testamentary Intention

Accountant in bankruptcy as Trustee on the sequestrated estates of George Brown v Winifred Margaret Brown [2007] CSOH 133

Thu, 26 Jul 2007 20:00:00 GMT

Permanent Trustee

James Crosby Chisholm (Pardoes Executor) + Ian William Turnbull and Anothers (Robin Forbes Hendersons Executors) + Kathryn Heather Ridehalgh and Another (Frances Ruth Shand Kydds Exectors) for Directions

Wed, 23 Nov 2005 00:00:00 GMT

Petitions for Directions:

Ceria Pirie v. The Clydesdale Bank Plc + Elizabeth Pirie + Charles Pirie Trust Disposition and Settlement/Debate:

Tue, 12 Apr 2005 00:00:00 GMT

Unnown