On September 1st of this year, a landmark decision was handed down by Sheriff Philip Mann in Aberdeen Sheriff Court. If followed by prospective courts, this decision will redefine the very boundaries of estate administration practice as we know it in Scotland.
The deceased in this case, Mr Thomas Nicol Rae, left a Will naming his wife, Mrs Eleanor Rae, as his sole beneficiary and nominated two Executors, both of whom died before him. As a general rule of practice, Mrs Rae would have to petition the court under section 3 of the Executors (Scotland) Act 1900 on grounds known as executrix-nominate or in a dative capacity qua relict of the deceased. Mrs Rae lacked the necessary capacity to carry out the duties of Executor in this instance however, leaving the office of Executor vacant.
In what appears to be a first in Scottish legal history, Mrs Rae’s continuing attorney sought to step in and fulfil this role on her behalf on the grounds that this fell within the remit of their powers. In reaching his decision, Sheriff Mann largely referred to the main authority on commissary matters here, namely Currie on Confirmation of Executors (W.Green, 9th ed, 2011). He pointed to paragraph 8-43 where Currie stipulated that “the power of attorney of a UK resident person will never enable the attorney to apply for confirmation on behalf of the incapax”. According to Currie, it should generally be a guardian or the holder of an intervention order in respect of such person who lacks capacity who would take up the office. In other words, an attorney would not be able to act on behalf of an Executor in these circumstances even if a Power of Attorney by an individual was in place.
However, Sheriff Mann threatens this frequent practice in his landmark counter opinion:
“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.”
Building upon this, Sheriff Mann noted that it would be in the public interest for the estate of deceased persons if they are administered with the least possible delay and with the least possible expense. On these grounds, Sheriff Mann granted decree allowing the Attorney to act as Executor-Dative qua attorney of Mrs Rae – a very welcome step towards a more flexible playing field across Scotland in estate administration.
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