Personal injury sheriff rejects claim by husband of deceased woman who tripped over mat prior to death

About this case:

• Citation:
  [2022] EDIN 1
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Mundy

John Riddell, the executor dative of his late wife Valerie Riddell, argued that he had the relevant capacity to raise a claim against her former employer, Arcus Solutions (Holdings) Ltd. The defender argued that, as he had not been confirmed as executor at the time the action was raised, he lacked such title.

The case was heard by Sheriff John Mundy. The pursuer was represented by Miller, advocate, and the defender by Stringer, solicitor.

Due process

On 23 February 2018, while working as a bakery assistant in a supermarket, the deceased tripped over a rolled-up mat that had been left in a thoroughfare by a cleaner. She later passed away intestate in July of that same year, although it was not suggested that her death was connected to the accident. The defender admitted breach of duty on 8 October 2020, with a court action being subsequently served in February 2021.

In July 2021, the pursuer requested a sist in the case to allow him “to be confirmed as executor dative” in relation to his wife’s estate. The motion was opposed by the defender on the basis that it inferred that at the time he raised the action the pursuer was not his wife’s executor dative and therefore had no title to sue.

In a note of argument lodged by the pursuer, it was explained that he was not at that time appointed or confirmed as executor dative but that it was understood that a petition for his appointment was in the process of being presented. However, he was entitled to be appointed as such by virtue of being the deceased’s spouse. The sheriff refused the motion for a sist and allowed the matter to continue to debate.

It was submitted for the defender that the pursuer had not followed due process to be appointed as executor dative and there was, therefore, a fundamental issue in relation to his title to sue. As he required a court petition to confirm his title, the pursuer’s title required more than a simple formality to confirm, and thus his position could be distinguished from that of an executor nominate in terms of a will.

On behalf of the pursuer, it was submitted that the function of the court in appointing him executor dative was purely administrative, with no room for judicial discretion. His title was an imperfect one that could be perfected by the court. Alternatively, he had title to sue by the operation of section 9 of the Succession (Scotland) Act 1964, which would confer title subject to a mere formality of confirmation prior to extraction and enforcement of decree.

No authority to act

In his decision, Sheriff Mundy noted as a generality: “In submissions the word ‘confirmation’ seemed to be used interchangeably, firstly for the act of appointment of an executor dative and secondly for confirmation to an estate. These are of course two separate things. This is not a case where the pursuer has been appointed executor dative and merely requires to obtain confirmation before extracting any decree. In this case, there has been in fact no appointment as yet of the pursuer as executor dative to his late wife’s estate.”

Turning to the law concerning appointment of executors dative, he said: “While the commissary practice appears to be to treat the surviving spouse on intestacy whose rights exhaust the whole intestate estate as having an exclusive right to be appointed executor dative, this is not in fact what is prescribed by section 9(4) of the [1964] Act. The terms of the provision are that the surviving spouse has a right to be appointed executor dative, not an exclusive right.”

He continued: “Accordingly, it is not correct to say that the pursuer in the present case, on the hypothesis that he would take the whole intestate estate, has an absolute right to be appointed executor dative to his late wife’s estate if that is meant to suggest that his right is an exclusive one. However, even if it was, the critical fact is that the right had not been exercised at the time this action was raised. Accordingly, the pursuer had not in fact been appointed as executor dative when the action was raised.”

Sheriff Mundy concluded: “It matters not in these circumstances whether or not the act of appointment is a judicial or administrative one. None took place. Section 20 of the 1964 Act does not therefore operate to vest in the pursuer the powers of a trustee at common law or under statute, including the Trusts (Scotland) Acts, which would include the power to raise court proceedings. As at the raising of the present action, the pursuer had no authority to act as executor and no power to instigate proceedings.”

The pursuer’s action was therefore dismissed, with expenses awarded to the defender.