Justin Reid: Sheriff allows attorney to act as executor-dative in late husband’s estate

Justin Reid: Sheriff allows attorney to act as executor-dative in late husband's estate

Justin Reid

Sheriff Philip Mann sitting in Aberdeen Sheriff Court has just handed down a landmark decision (Mrs Susan Gordon, Petitioner, [2023] SC ABE 26) which, if followed by other courts, will open a new door in commissary practice across Scotland, writes Justin Reid.

The deceased, Mr Thomas Nicol Rae, left a Will providing that the residue of his estate would be inherited by his wife, Mrs Eleanor Rae, if she survived him. The two Executors nominated in the Will had predeceased Mr Rae. Ordinarily, this would mean Mrs Rae would petition the court under section 3 of the Executors (Scotland) Act 1900 as executrix-nominate or in a dative capacity qua relict. The only fly in the ointment was that Mrs Rae did not have capacity and therefore could not carry out the duties of an executor. Mrs Rae’s continuing attorney sought to step in and take up the office of executor on her behalf, something never seen before in the reported authorities.

Agents for the petitioner, the attorney, first sought to have her appointed qua representative of the deceased. Sheriff Mann dismissed this, calling it “inappropriate” because this is reserved for those that are confirmed executor of a deceased person who, if alive, would be entitled to the office of executor-dative. The sheriff continued: “The real question in this case is whether or not the pursuer is entitled to be appointed as executrix-dative qua attorney of Mrs Rae.”

Sheriff Mann started by consulting the main authority on commissary matters, Currie on Confirmation of Executors (W.Green, 9th ed, 2011). He noted that at paragraph 8-43 Currie says: “The power of attorney of a UK resident person will never enable the attorney to apply for confirmation on behalf of the incapax.”

In what appears to be a legal first, Sheriff Mann said:

“ I am inclined to disagree with Currie on this matter so far as it concerns an incapax…I can see no reason in principle why it should not be equally as competent to appoint an attorney as to appoint a guardian or the holder of an intervention order to the office of executor-dative qua such in these circumstances. All such representative parties are subject to the terms of the Adults with Incapacity (Scotland) Act 2000 (at least where the attorney is appointed after the coming into force of that Act). All are thus subject to supervisory powers of the public guardian and the court. All would require to find caution. One could argue that an attorney appointed by the person with the right to be appointed executor, and in whom that person has placed his trust, has a better claim to be appointed than a person appointed by the court.”

Further, the sheriff expressed the view that it would be in the public interest for estates of deceased persons to be administered with the least possible delay and with the least possible expense. The sheriff covered his bases by granting warrant to intimate the petition on the Public Guardian and the Lord Advocate with a note of his views. Neither the Lord Advocate nor the Public Guardian chose to make representations in this case. Accordingly, Sheriff Mann granted a decree on the 1st September 2023.

It is noteworthy that in England and Wales a similar decision was reached by the High Court in the case of Whittaker v Hancock [2018] EWHC 3478 (Ch). In that case, the deceased’s wife was named as an executor and the sole beneficiary of her husband’s estate, but for various reasons the other executor did not wish to act. The wife’s attorney sought to deal with the deceased’s estate arguing that because the deceased’s property was due to the wife, this fell within the remit of the attorney’s powers. The Court found in favour of the attorney.

Some critics tend to the view that the Scottish Courts are somewhat pedantic when it comes to commissary matters, however, this unexpected decision has blown a major hole in this reputation of inflexibility. This is very welcome news from Aberdeen Sheriff Court and it looks like Scotland may now be coming into step with England and Wales.

Justin Reid is a trainee solicitor at Laurie & Co. Solicitors LLP and a PhD candidate at the University of Aberdeen School of Law.

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