September 2015 – “The battle of the executors”

Author: Mitchells Roberton
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Introduction 

  • When someone makes a will they usually include in it the appointment of “executors”: that is the people they want to be in control of the administration of their estates and responsible for distributing the property to their chosen beneficiaries.
  • The choice of whom to appoint is entirely up to the person making their will. Executors appointed under a will are generally referred to as “executors-nominate”.
  • On the other hand, if someone dies without a will they still need executors to administer the estate and be responsible for distributing the deceased’s property to those entitled to it under the applicable legal rules.
  • But, in this case, where there is no will, the executors have to be appointed by the court. Executors so appointed by the court are generally referred to as “executors-dative”. In broad terms those entitled to be appointed as executors-dative will be those entitled to inherit the deceased’s estate in accordance with the fixed rules which apply where someone dies without a will.
  • Usually this all goes smoothly and the executor-dative – or executors-dative – so appointed do their job and everyone is happy. But occasionally there are concerns amongst families as to whether a particular individual is a suitable person to carry out the functions of being an executor-dative. In extreme cases there may be an application to the court by the opposing family members to try and get someone excluded from being executor-dative. This note illustrates a recent court case which re-affirmed the rule that this is not something over which the court can rule. We turn next to the case itself.

Ford v Campbell

  • This was a case involving two sisters, Louise and Yvonne, in relation to their mother who had died without leaving a will.
  • Louise had applied to be appointed sole executor-dative. Yvonne objected and, in turn, asked the court to appoint her as sole executor-dative or, alternatively, as executor-dative along with her sister.
  • The court papers included averments that, after their mother became a permanent resident in  a Care Home, Louise, as their mother’s “guardian”, had left their mother’s home vacant, unsold and uninsured and used it to store items. In particular, the home had functioned as a form of garage for a motorbike which had been spray-painted in the lounge.
  • The court expressed “no opinion on the veracity” of those allegations. But they give a flavour of the sort of disputes that can arise and the sorts of allegations that may be advanced to aim to show that a particular individual is not someone who should be appointed by the court as executor-dative.
  • The sheriff (judge) identified the two issues to be determined as follows. First, does the court have a discretion to choose between two individuals within the same category of relationship (in this case sisters). And, secondly, if there is a discretion how should it be exercised?
  • In the event, the sheriff decided (following an earlier court ruling in another such case) that the second question did not need to be addressed because the answer to the first question was no: the court had no discretion. It could not choose between Louise and Yvonne. So both were appointed executors-dative.
  • The sheriff said:

“Here two daughters are vying with each other for appointment [as executors-dative] … The court’s role is an administrative one, not judicial, where both parties are in the same category of relationship to the deceased [i.e. daughters]… while recognising that there may be cases where, as here, criticisms are levied at [someone applying for appointment as executor-dative] on the basis that he or she is unsuitable, having mismanaged the affairs of a deceased while acting as guardian … [the court has] no discretion.”

The future

The Scottish Government recently consulted on major reforms to the law of succession. (The consultation closed on 18th September 2015.) One particular aspect of this is whether the court should be given the power to refuse to appoint an executor dative. So this – along with much else – may change before too long. Meantime, there is no discretion in the matter.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Bruce Battersby: Bruce@mitchells-roberton.co.uk

 

 

 

 

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