Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 41
A201/11	OPINION OF LORD TYRE in the cause GORDON WRIGHT TURNER, Executor nominate of the late ISABELLA COUTTS GORDON Pursuer; against (FIRST) JOHN SUTHERLAND GORDON TURNER; (SECOND) ISABELLA POVEY; (THIRD) ANNIE COBB; (FOURTH) AILEEN ODAM; (FIFTH) ISOBEL GORDON; (SIXTH) HUGH GORDON Junior; (SEVENTH) PETER GORDON; and (EIGHTH) DORIS GAULD Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Francis; Brodies LLP

Defenders: Ross; Morton Fraser LLP

7 March 2012

Introduction

[1] This case, which came before me for summary trial by agreement of the parties, raises an important question which has not previously been the subject of decision by a Scottish court. Where an attorney, acting prudently in accordance with the terms of a continuing power of attorney, disposes of an item of property from the granter's estate after the granter has become incapable of managing his or her own affairs, is a bequest in the granter's will of that property thereby adeemed?

Factual background

[2] The facts of this case were not in dispute and were set out in a joint minute agreed by the parties. So far as material to my opinion, they may be summarised as follows. The late Miss Isabella Coutts Gordon ("the testatrix") was born on 26 April 1915. She was formerly the proprietrix and occupier of a house at 33 Dunnottar Avenue, Stonehaven. On 17 April 1996, she granted a power of attorney in favour of a solicitor, Mr Alan Bisset. In this document she conferred upon the attorney "power to do all things which can lawfully be done by an attorney" and, in particular, the powers detailed in a schedule to the deed which included power to sell any part of her means and estate, heritable or moveable. The power of attorney included a declaration that

"all acts done or granted by my Attorney in virtue of the powers hereby conferred shall be as valid and binding as if done or granted by myself".

The deed concluded:

"And I hereby ratify and confirm all that my Attorney shall do or cause to be done in virtue of the powers hereby conferred".

[3] On 2 July 1997, the testatrix executed a will, appointing the pursuer and the first defender as her trustees and executors. In her will she directed her executors to make over the heritable property at 33 Dunnottar Avenue to the first defender, and to realise and make over the residue of the estate equally among the pursuer and the first to eighth defenders, with destinations over in the event of any of them predeceasing her leaving issue.

[4] In 2001, the testatrix's mental capacity diminished. She became incapable of managing her own affairs and moved into a nursing home. In September 2001, the attorney sold the house at 33 Dunnottar Avenue for £71, 250. As regards this sale, the parties are agreed as follows:

"The sale of the house by Mr Bisset 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 [the testatrix] as principal, had she been sui juris, would have been constrained to effect, there being sufficient other funds available to meet the costs of [her] care."

[5] The testatrix died on 27 January 2008. The pursuer and the first defender were confirmed as her executors on 27 March 2008. The total estate for confirmation was £220,217. As at 5 April 2011, the value of the estate was £173,455.

Power of attorney: statutory provisions

[6] The law regarding power of attorney (or, to use the traditional Scots term, factory and commission) was the subject of a significant amendment by section 71 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Before this amendment, the authority of an attorney or factor acting under a power of attorney - or factory and commission - terminated in the event of the mental incapacity of the granter. With effect from 1 January 1991 that rule of law ceased to apply. For the sake of completeness, it should be noted that the current law is contained in section 15 of the Adults with Incapacity (Scotland) Act 2000, subsection (1) of which provides as follows in relation to what is now referred to as a continuing power of attorney:

" Where an individual grants a power of attorney relating to his property or financial affairs in accordance with the following provisions of this section that power of attorney shall, notwithstanding any rule of law, continue to have effect in the event of the granter's becoming incapable in relation to decisions about the matter to which the power of attorney relates."

The provisions of section 15 do not, of course, apply to the power of attorney in the present case, which was granted in 1997, but by virtue of paragraph 4 of Schedule 4 to the 2000 Act, the attorney became a continuing attorney on the entry into force of the Act.

[7] It will be appreciated that the issue which comes before the court for decision in the present case could not have arisen with regard to any person who became incapable before 1 January 1991, as the attorney's powers (including any power of sale) would have lapsed on the granter's incapacity.

Submissions for the parties

[8] Both parties provided me with detailed and carefully researched written and oral submissions. I shall set these out in summary before addressing them in greater depth in the discussion below.

Submission for the pursuer

[9] Counsel for the pursuer, one of the residuary beneficiaries, contended that the legacy of the house was adeemed. There was a short and a long answer to the special legatee's claim. The short answer was that the sole question to ask was: was the subject of the legacy in the testatrix's estate at death? If not, the legacy was adeemed. The long answer depended upon the development of the law of both ademption and conversion, which were distinct doctrines, with certain points of contact, derived to a large extent from English law. Conversion is dependent upon the presumed intention of the testatrix. In the present case, the attorney's act was equivalent to the testatrix's act. Because the disposal of the house was authorised (and prospectively ratified) by the testatrix, it effected conversion of the heritable property consisting of the house to moveable property consisting of the proceeds of sale. Intention is not, however, relevant to ademption. Where, as here, property had been converted by an appropriately authorised transaction, it was simply gone from the estate and the legacy of it was accordingly adeemed.

Submission for the first defender

[10] Counsel for the first defender submitted that a transaction carried out by an attorney should be regarded as analogous to a transaction carried out, under pre-2000 law, by a curator bonis. A sale by a curator bonis effected neither conversion of the property nor ademption of a legacy thereof, unless it could be shown that it would have been a necessary and unavoidable act on the part of the ward if sui juris. By agreement, that was not the position here. The legacy was not therefore adeemed and the first defender was entitled to the proceeds of sale as a surrogatum for the house.

Analysis: transaction carried out by an attorney

[11] The term "attorney" appears to have originated in English law: the Scots equivalent, as already noted, was a factor acting under a factory and commission. Erskine (Institute III.III.31) appears to treat the word attorney as an alternative to factor or mandatory, "according to the different nature of the mandate". Bell (Principles, para 217-9) distinguishes mandate, which is performed gratuitously, from agency or factory, which is performed for reward, but does not seek to distinguish a general agent from a factor. By the time of publication of Green's Encyclopaedia of the Laws of Scotland in 1929, the law could be summarised thus (Vol 7, paras 180-181):

"180. A factory is a deed by which one authorises another to exercise a right or rights in his place. The word commission used to be applied to such a deed when the powers conferred were of higher importance than usual, but now factory and commission are practically synonymous. The corresponding English term, power of attorney, is now frequently used in Scotland where the powers granted by the deed are not intended to be confined to Scotland.

181. A factory may be (1) general, conferring none but the most ordinary powers of administration; or (2) special, authorising the performance of a particular act or acts; or (3) general and special, in which the general powers are limited by special restrictions, or, as is more usual, the special powers extend the factor's general authority. The factory is not a divestiture, and even during its subsistence the constituent may act for himself."

[12] Save for the fact that the term "power of attorney" appears to have almost entirely superseded "factory and commission" in Scottish practice, this description appears to me to remain apposite today. Most attorneys are now appointed (as was the attorney in the present case) by a deed conferring upon them a general power to do everything that the granter could do for himself or herself, supplemented by a list of specific powers granted without prejudice to the generality. The attorney is thus, in essence, a factor or general and special agent appointed and authorised by the granter to manage his affairs and, in the course of so doing, to bind him in legal relationships with third parties. There is, in my opinion, no legal fiction which treats the attorney as the same person in law as the granter, or which treats the attorney's acts as those of the granter. Rather, the attorney's acts are as valid and binding on the granter as if they had been carried out by him, and the attorney is accountable, as is any factor, agent or mandatory, to the granter for his intromissions. The fact that the power of attorney in the present case includes a clause that prospectively ratifies and confirms the acts of the attorney does not, in my opinion, make any difference to the foregoing analysis. It is also worth emphasising the point made in the last sentence of the quotation above that the granter is not divested of any power to act for himself during the subsistence of the power of attorney.

[13] The nature of the office of curator bonis (which was rendered obsolete by section 80 of and Schedule 4 to the 2000 Act) was considered by the court in Inland Revenue v McMillan's Curator Bonis 1956 SC 142, in the context of the deductibility of the curator's expenses in calculating the ward's surtax liability. Lord President Clyde observed (page 147):

"The essential purpose of the appointment of a curator bonis to an incapax is to supersede the latter in the management of his estates - see Lord Kinnear in Yule v Alexander 19R 167, at p.169. But they still remain his estates, and, as the Lord President said in that case (at p.168): 'The position of a curator bonis is not that he has transferred to him the estate of the ward, nor is the ward divested of that estate. The more accurate statement is that made by Mr Bell (Principles, sec.2121), viz., that the ward's management of his estate is superseded in favour of the curator.'... In my view, the curator bonis is in the same category for the present purpose as an agent or factor appointed by a capax to manage his affairs and ingather his estate. In the case of an incapax the Court necessarily has to make the appointment, because the ward is incapable of doing so."

To similar effect, Lord Sorn stated (page 149):

"The incapax is unable to manage his estate for himself; he has not himself appointed anyone else to manage it for him; and so the Court comes to the rescue and supersedes him by a manager of their own choosing."

[14] It should be acknowledged that the "present purpose" with which the court was dealing was a question of deductibility for tax purposes, but the remarks that I have quoted have since been applied in other contexts: see, for example, Burns' Curator Bonis v Burns' Trs 1961 SLT 166 (Lord Kilbrandon at 167) and D's Curator Bonis, Noter 1998 SLT 1 (Lord Nimmo Smith at 3-4). In my opinion they provide an authoritative statement, of general application, that so far as management of the estate of the ward/granter (as the case may be) is concerned, a curator bonis was in a position similar to that of an attorney appointed by a granter with full capacity, the only difference being that in the case of a curator bonis, the appointment necessarily had to be made by the court. Each was/is authorised to act on behalf of a person who, for differing reasons, is or may be unable to manage his own affairs. The parallel seems to me to be even closer between, on the one hand, a curator bonis appointed by the court and, on the other, an attorney acting under a continuing power of attorney granted by a person who has subsequently become incapable. I am satisfied that in addressing the issue which arises for decision in the present case, I can and should seek guidance from case law concerning the effect of the actings of a curator bonis on succession or on ademption of legacies.

Analysis: effect of sale by a curator bonis

[15] For reasons which I shall explain, I consider that the pivotal authority for present purposes is Macfarlane's Trs v Macfarlane 1910 SC 325. However, in order properly to understand what the court decided in that case, it is necessary to consider briefly the development up to 1910 of two separate but related strands of succession law, namely (a) conversion for purposes of succession and (b) ademption of legacies and bequests.

Conversion

[16] The doctrine of conversion has declined in importance with the assimilation of heritable and moveable succession by the Succession (Scotland) Act 1964, but was of considerable significance in the 19^th century. To some extent under influence of English law, Scots law recognises certain circumstances in which heritable property in a person's estate at the date of death may be treated as moveable for succession purposes, or vice versa. During the era when the leading cases were decided, these circumstances consisted mostly of what might be termed post-death conversion or constructive conversion, where the heritable property was realised after death by trustees in accordance with an express or implied testamentary direction. In Buchanan v Angus (1862) 4 Macq 374, the principle, so far as material to the present case, was stated by the Lord Chancellor (Westbury) as follows:

"The principle or doctrine of conversion appears to be the same both in England and in Scotland. Conversion is a question of intention, and depends on the nature and effect of the directions given in any settlement or will. If real or heritable property be vested in trustees upon an absolute and unconditional trust for sale, either declared or necessarily implied and the proceeds of such sale are disposed of, there is (in the quaint phrase of the English law) an out and out conversion for the purposes of that disposition; and the interest of every beneficiary taking under the disposition is of the nature of personal or moveable property."

Conversely, a testamentary direction to invest money in land, to be settled on selected heirs, operated to vest the capital fund in the testator's heirs to descend as heritable property: see e.g. McLaren, Wills and Succession (3^rd ed., 1894) at para 430 and cases cited there.

[17] Conversion has also been held to operate where a binding contract for sale or purchase of heritable property is concluded prior to the testator's death. In the case of a voluntary sale, the proceeds of sale are treated as moveable for purposes of succession to the seller's estate, even though the property has not been conveyed to the purchaser prior to the date of death. To this rule there is "no exception" (Macfarlane v Greig (1895) 22R 405, Lord McLaren at 408). The same applies where a sale by a testator was involuntary, due, for example, to compulsory purchase (Heron v Espie (1856) 18D 917, a decision of the whole Court) or to a court order for division and sale of common property (Macfarlane v Greig, above). The underlying rationale once again appears to be the presumed intention of the testator that the proceeds of sale should be treated for succession purposes as moveable.

[18] The position was, however, held consistently to be otherwise where a sale prior to death was effected not by the testator but by a person acting in a representative capacity, such as a curator bonis. Here the general rule was that an act of the curator such as sale of the ward's heritable property, or the granting of security over it, did not affect the succession, even where the transaction was plainly advantageous to the ward's estate (as in Kennedy v Kennedy (1843) 6D 40), and even when sanctioned by the court (as in Moncrieff v Miln (1856) 18D 1286). This was described by Lord McLaren in Macfarlane v Greig as "trite law". There was, however, an exception to this general rule where the sale of heritable property was not merely an act of wise administration but a necessity in order to maintain the ward, the moveable estate having been exhausted. In that exceptional situation any balance of the sale of heritage remaining at the date of death was treated as moveable estate: McAdam's Exrs v Souters (1904) 7F 179.

[19] So far as the English law meaning of the word "conversion" is concerned, I need say only that it appears to me that the expression is used somewhat more broadly than the Scots meaning of change from heritable to moveable or vice versa. For example, in Jenkins v Jones (1866) LR 2 Eq 323, a realisation of farming stock and implements was described as "conversion", and in Jones v Green (1868) LR 5 Eq 555, a sale of shares followed by a purchase of Government stock with the proceeds of sale was similarly described. I therefore require to approach with some caution the English authorities regarding conversion that were cited to me in the course of the hearing.

Ademption

[20] Where the subject matter of a bequest or legacy (whether heritable or moveable) has been disposed of by the testator so that it no longer forms part of his estate at the date of death, the bequest or legacy is said to have been adeemed, and cannot take effect. The doctrine of ademption has its origins in Roman law, but in one important respect Scots law has followed English law in departing from Roman law principles. In contrast to the doctrine of conversion, the intention of the testator is not regarded as relevant to ademption. In England, rejection of inquiry into intention was clearly expressed in the judgment of Lord Chancellor Thurlow in Stanley v Potter (1789) 2 Cox 180 at 182-3, as follows:

"When the case of Ashburner v McGuire [(1786) 2 Bro CC 108] was before me, I took all the pains I could to sift the several cases upon the subject, and I could find no certain rule to be drawn from them, except this, to inquire whether the legacy was a specific legacy (which is generally the difficult question in these cases), and if specific, whether the thing remained at the testator's death; and one must consider it in the same manner as if a testator had given a particular horse to A.B. if that horse died in the testator's lifetime, or was disposed of by him, then there is nothing on which the bequest can operate. And I do not think that the question in these cases turns on the intention of the testator. The idea of proceeding on the animus adimendi has introduced a degree of confusion in the cases which is inexplicable, and I can make out no precise rule from them upon that ground.... I believe it will be a safer and clearer way to adhere to the plain rule which I before mentioned, which is to inquire whether the specific thing given remains or not."

[21] In 19^th century Scottish cases, a similar approach was taken in, for example, Pagan v Pagan (1836) 16S 383 and Chalmers v Chalmers (1851) 14D 57. Any remaining doubt was dispelled by Anderson v Thomson (1877) 4R 1101, in which the court held, with great reluctance, that it was bound by authority to treat the testator's intention, however clearly expressed, as being of no relevance to questions of ademption of legacies. The only matter of relevance was whether the subject of the legacy was comprised in the testator's estate at the date of death. This remains the law, and a series of subsequent cases in both Scotland and England have been concerned with applying this rule to such circumstances as, for example, a reorganisation of company shares, or a movement of funds from the bank account named in a will to a different account with the same bank or with a different bank.

[22] The significance of disregarding the intention of the testator in relation to ademption of legacies is well illustrated by cases concerning property which is the subject of a bequest but in respect of which missives for sale have been concluded prior to the testator's death. This was the situation in Pollok's Trs v Anderson (1902) 4F 455, in which the testator's will included a bequest of a certain property in Glasgow. After the date of the settlement the property was sold to the Corporation of Glasgow in pursuance of a compulsory purchase order, but the testator died without having executed a conveyance of the subjects to the Corporation. The court held, without apparent difficulty, that the bequest was not adeemed. The property remained comprised in the testator's estate at death and passed to the beneficiary under burden of an obligation to convey it to the Corporation but with a right to receive the price. The contrast between this decision and the cases concerning conversion (to which I have already referred) is readily apparent, and in McArthur's Exrs v Guild 1908 SC 743, a Court of Seven Judges was convened to decide whether Pollok's Trs v Anderson conflicted with the decision of the whole Court in Heron v Espie (above). The court held that it did not, and those who expressed a view on Pollok's Trs v Anderson considered that it had been correctly decided. Referring to the decision in Heron v Espie, Lord President Dunedin observed (page 748):

"If it had been a voluntary sale, of course the property would have been moveable, but only on the principle of conversion, which depends on the will of the owner and testator. It seems to me that the moment that you settle that intention is neither here nor there in a question of ademption, Heron v Espie becomes really an authority, not at variance with, but in favour of Pollok's Trs v Anderson."

In a concurring judgment, Lord Ardwall considered that any apparent difficulties that arose on the authorities could be satisfactorily explained "...if care is taken to distinguish between cases of conversion and cases of ademption".

[23] A number of 19^th century English decisions addressed circumstances in which the subject of a specific legacy or bequest was disposed of not by the testator but by someone purporting to act on behalf of a testator who was incapable of managing his or her own affairs. In Taylor v Taylor (1853) 10 Hare 475, a testator who carried on business as a jeweller and cutler executed a will bequeathing his business, including the lease of his premises and his stock in trade, to his wife. He subsequently became incapax although no commission in lunacy was taken out. It was agreed among his executors, including his wife, that the business should be sold to the testator's assistant, and such a sale was in the course of being effected at the time of the testator's death. In an action brought to determine entitlement to the proceeds of sale of the business, it was found that the decision to dispose of the business had been a proper one. Nevertheless it was held that the bequest was not adeemed, as the sale had been effected without appropriate authority. A similar decision was reached in Jenkins v Jones (above), in which the testator was a farmer who, having bequeathed his farming stock to his son, became incapax. The legatee, with the concurrence of the executor, sold the farming stock prior to the testator's death. Again it was held that the act of a third party, without the knowledge or authority of the testator, did not operate ademption. These two decisions may be contrasted with Jones v Green (above), in which the testator had, in accordance with the English procedure of the time, been the subject of an inquisition in lunacy and found to be of unsound mind, and a committee in lunacy had been appointed by order of the court. The court order included a direction to the committee to sell certain shares which were the subject of a specific bequest in the ward's will; the proceeds of sale were reinvested in government stock. It was held that the legacy was adeemed. Sir G.M Giffard V-C stated (page 560):

"All the authorities shew that the conversion must be treated as a lawful conversion, exactly as if the testator had himself converted the shares into consols. Such an act on his part would clearly have adeemed the gift."

The distinction between this case on the one hand and Taylor v Taylor and Jenkins v Jones on the other was that in Jones v Green the sale was carried out in pursuance of a direction by the court. The importance of authorisation was confirmed by the subsequent case of In re Larking (1887) 37 Ch D 310, in which a testator who subsequently became incapax had specifically bequeathed the proceeds of a life insurance policy under burden of repayment of a debt. During the testator's lifetime, his committee in lunacy repaid the debt using other funds without obtaining authority to do so from the Lords Justices in Lunacy. It was held that such an act could not alter the rights of beneficiaries and that the estate was entitled to be reimbursed out of the policy monies.

[24] On the strength of this line of case law, it appears to be established in English law that a disposal carried out by a person other than the testator, without the testator's awareness, will have ademptive effect only if it was authorised by an appropriate authority, such as a court order granted in accordance with a statutory provision. There is, however, little evidence of this test ever having been applied in Scotland. The only indication to which I was referred was the following statement by Lord McLaren, writing extrajudicially in Wills and Succession (cit sup) at page 408, in the course of his treatment of ademption:

"Nor will the unauthorised act of the testator's agents, or of his guardians in the event of supervening incapacity, have the effect of disappointing the special legatee." (Emphasis added.)

The authority cited for this statement is Taylor v Taylor.

The decision in Macfarlane's Trs v Macfarlane

[25] When the point did eventually come before a Scottish court for decision, a rather different test was applied. In Macfarlane's Trustees v Macfarlane (above), a testator who had bequeathed shares in a certain company to four beneficiaries became incapax and a curator bonis was appointed to manage his affairs. In the course of his administration the curator sold the whole of the shareholding in that company, not because it was necessary for the maintenance of the ward but because he considered it prudent to do so. Although the report does not say so expressly, there seems to be no doubt that the sale of the shares fell within the scope of the authority of the curator, who was in fact unaware of the terms of the will. It was argued on behalf of the residuary beneficiaries that the legacy of the shares was adeemed by the curator's sale in the same way as if they had been sold by the testator himself. Reference was made to Jones v Green. The court held, however, that the legacy had not been adeemed, and in so doing applied to ademption the test of necessity which had hitherto been applied in Scotland in cases of conversion. It is worth quoting from the opinion of Lord Dundas (at page 329) , with which the other members of the court agreed, at some length:

"...Mr Valentine [Counsel for the residuary beneficiaries] was able to urge, with much plausibility, that the legacy was plainly adeemed, because at the truster's death there was no part of his estate corresponding to the subject of the bequest; he had no shares of any sort in the Empire Company. I think, however, that this argument, though plausible, is not sound; and that Mr Fleming's [Counsel for the special legatees] answer sufficiently disposes of it. Mr Fleming pointed out, what is indeed trite law, that no act of a curator bonis can avail to affect the order of his ward's succession, or its character in the distribution of it between heir and executor, unless it can be shewn not only that it was a proper and necessary act of administration on the part of the curator, but that it would have been a necessary and unavoidable act on the part of the ward if sui juris. This doctrine is well illustrated by the cases of Kennedy and Moncrieff, where the actings of curators were held not to affect the ward's succession, and by that of McAdam's Executor, where the curator's sale of the ward's heritage was held to operate conversion, because it was an absolutely necessary act in order to the maintenance of the ward. The rule and its exception are both well settled in our law, and I cannot doubt that the present case falls within the former and not the latter. It may have been, in a sense, 'necessary' for the curator to sell these shares, but it was obviously not necessary, in any sense, for the ward to have done so if he had remained capax. In these circumstances, though the testator's estate at his death did not, in fact, include the shares in question, they must, in my judgment, be held to have formed part of it at that date, and that without in any degree impinging upon the well-established general rule of law, already alluded to, that a testator's intention is not to be looked to in a question of ademption. The sale of the shares did not arise from any such intention, nor from any act of this testator, but from the act of a third party, the curator bonis, exercised at the time and in the circumstances already mentioned, in the proper course of his administration, but not owing to the necessities of his ward's position."

[26] It will be recalled that Kennedy, Moncrieff and McAdam's Executor were all cases concerning not ademption but conversion of heritable to moveable property. However, it seems quite clear that the court in Macfarlane's Trs was fully aware of this potential distinction and chose to reject it. Lord Ardwall's concurring opinion at pages 331-2 begins as follows:

"I agree with the opinion just delivered by Lord Dundas, but I wish to add a word upon the application to questions of ademption of the rule that a voluntary act of a curator bonis cannot alter the succession to his ward. It was argued for the [residuary beneficiaries] that this rule, though it might apply to questions involving the doctrine of conversion of heritable estate to moveable, or moveable estate to heritable, in regard to succession, was not applicable to questions of ademption, and that for the reason that while the element of intention enters into questions of conversion, as was recognised in the opinions delivered in the case of McArthur's Executors v Guild, yet intention had no place, as was decided in the same case, in questions of ademption, and that accordingly it was of no consequence in such questions, of which the present is one, whether the subject of the specific bequest had been taken out the estate of the deceased by the act of a curator or by the deceased's own act."

Lord Ardwall then proceeded to reject this argument because the rule regarding voluntary acts of a curator bonis had been applied indiscriminately in cases of both testate succession (where questions of intention may arise) and intestate succession (where there can be no such question).

[27] In my opinion, Macfarlane's Trs v Macfarlane provides clear and binding authority for the proposition that a sale by a curator bonis of the subject of a specific legacy did not have ademptive effect unless the sale would have been a necessary and unavoidable act on the part of the ward if sui juris. It is of some interest to note that in Professor Oswald Dykes' Supplement to McLaren's Wills and Succession (1934), the author states (page 136) that

"There is one curious, but important, exception to the rule that the disappearance of the subject of a legacy from among the belongings of the testator before his death results in the ademption of the legacy. That exception arises from the decision of the Courts that a sale of the subject by a curator bonis upon the supervening incapacity of the testator will not bring about ademption unless the sale was a necessary act of administration which would have been an equally necessary act of administration on the part of the testator if he had been sui juris.

The authority cited for this statement is, of course, Macfarlane's Trs. The decision appears also to have been applied by the Lord Ordinary (Lord Blades) in Laurie's Trs v Stewart 1952 SLT (Notes) 19. Although there is no express reference within the published report to Macfarlane's Trs, the Lord Ordinary's opinion contains an extensive excerpt from the passage in Lord Dundas's opinion which I have set out above. If, therefore, I am correct in the view which I have already expressed that in deciding the present case I should seek guidance from case law concerning the effect of the actings of a curator bonis on ademption of legacies, I consider that Macfarlane's Trs provides the requisite authoritative guidance.

[28] On the basis of the foregoing analysis of the authorities, I have concluded that the argument presented on behalf of the first defender, in his capacity as the beneficiary of the specific bequest of 33 Dunnottar Avenue, is to be preferred. I hold that, in view of the parties' agreement that the sale of the house by the attorney was a prudent act of administration but not a necessary act in the relevant sense, the bequest of the house was not adeemed by the sale. I return below to consider the practical consequences of this decision. I should, however, say a little more about why I have felt unable to accept the pursuer's argument. I decline to accept the "short answer" because it fails to recognise the exception to the general rule for disposals by a curator bonis that was established in relation to ademption by Macfarlane's Trs. So far as the long answer is concerned, firstly, it does not appear to me that Scots law has at any time adopted authorisation by an appropriate authority as the relevant test either in relation to conversion of heritable to moveable property (or vice versa) or in relation to ademption of special legacies. There was never in Scotland an equivalent of the role in England of the Lord Chancellor regarding "lunatics" (described in some detail in the note by the Lord Ordinary (Lord Deas) in Moncrieff v Miln, above, at page 1290). Instead, Scots law developed the test of necessity in relation to conversion and subsequently adopted it in relation also to ademption. Secondly, for the reasons stated earlier in this opinion, I am not persuaded that there is any sound basis for deeming the acts of an attorney to be the acts of the granter of the power, as opposed to treating such acts as valid and binding upon the granter. Finally, even if I had accepted that a sale by an attorney operates conversion because it is authorised, I would not have felt able to accept the next step in the argument, namely that a legacy of heritage is extinguished by ademption because it has been converted to moveable property on conclusion of missives for sale. Such an argument might be thought to have a logical attraction, but it seems to me that Pollok's Trs v Anderson could not have been decided as it was if the argument were correct. It was, in fact, the unsuccessful argument in McArthur's Exrs v Guild where, it will be recalled, the soundness of Pollok's Trs v Anderson was affirmed.

[29] For the sake of completeness, I record that I was referred to the decision of Sheriff J.A. Baird in T, Applicant 2005 SLT (Sh Ct) 97, where an intervention order under section 53 of the 2000 Act was granted authorising the execution by an attorney of a codicil to the will of an incapable adult. The background to the application was the desire of the attorney to sell a house in which the adult no longer resided, and which had been specifically bequeathed to the attorney in the adult's will. It is apparent from the sheriff's decision that the application proceeded upon an assumption that if no order were made then, as a matter of law, the sale would be ademptive of the bequest. A similar assumption appears to have underlain a subsequent application to Sheriff Baird in Application in respect of H 2011 SLT (Sh Ct) 178. It is sufficient for me to observe that there is no indication in the report of either of these applications that the learned sheriff was addressed on the issues of law which have been argued before me in the present case.

Comparative authorities

[30] I am grateful to counsel for drawing to my attention that the point which arises in the present case has already come before courts in England and in several Australian states. The English case is Banks v National Westminster Bank plc
[2005] EWHC 3479 (Ch); [2006] WTLR 1693, a decision of His Honour Judge Rich QC. The facts were similar to those of the present case, save that in Banks the beneficiary of a specific legacy of the testatrix's house also happened to be the attorney who had exercised her power to sell it. After a careful review of the English authorities, the judge held that the legacy had been adeemed. Ademption would be avoided only where the sale was made not only without the testator's knowledge but also without either his or any other lawful authority (such as an order of the court in pursuance of a particular statutory provision). The exception to ademption illustrated by Jenkins v Jones was held to be limited to circumstances in which the subject of the bequest was extinguished by fraud or by tortuous acts unknown to the testator. In this case, the attorney had acted lawfully and properly, and the effect of the sale was to extinguish the bequest in her own favour. Judge Rich accepted that this was an unfortunate result but considered that any amendment to the law would require to be effected by Parliament and not by judicial pronouncement.

[31] It was noted by Judge Rich in Banks that the Supreme Court of Queensland had reached the opposite decision on very similar facts in In re Viertel [2003] WTLR 1075. In that case, Thomas J referred to legislation which had "softened" the consequences of an inadvertent ademption by an official appointed by the court to administer the estate of an incapable person but which did not apply to disposals by an attorney acting under a power of attorney. In contrast to the view subsequently taken by Judge Rich, Thomas J held that the exception to ademption illustrated by Jenkins v Jones was sufficiently wide to encompass a sale by an attorney of which the testator was unaware due to incapacity. In re Viertel has been followed by judges in a number of other Australian states; the various decisions are summarised in the judgment of Gzell J in Power v Power [2011] NSWSC 288. For present purposes I wish only to refer to an observation by Hargrave J in the Supreme Court of Victoria in the case of Simpson v Cunning [2011] VSC 466 at paragraph 45 that Re Viertel "...constitutes a justified extension of the common law to reflect current circumstances". My impression of the Australian case law is that at least some of the judges who have addressed the issue have been inclined to regard ademption as an unjust result, and have accordingly focused upon awareness of the testator, rather than authorisation, as the basis of the Jenkins v Jones exception to ademption. Power v Power also provides an interesting illustration of a sale by an attorney that was held not to be ademptive because it did not fall within the scope of the attorney's authority.

[32] In the end, however, a choice between the English and Australian approaches is not before me, as Scots law has adopted neither authority nor awareness as the criterion for determining whether the act of a representative such as an attorney has ademptive effect. It is, though, of some reassurance that the approach which I consider that I am bound to adopt on the basis of the Scottish jurisprudence produces a result which has generally been regarded in the Australian cases as a reasonable one and not the result which was regarded as unfortunate in Banks v National Westminster Bank plc. It may, finally, be noted that my opinion in this case accords with a proposal which was made by the Scottish Law Commission in its Discussion Paper No 94 (1991) on Mentally Disabled Adults (at para 5.68) but which was not included in the Commission's recommendations in its Report No 151 (1995) on Incapable Adults because (para 3.81) that report was not considered to be the appropriate place to deal with the problem of ademption of legacies.

Disposal

[33] I turn to the practical application of my decision to the circumstances of the present case in which the house was sold in 2001, i.e. more than six years before the testatrix's death and more than ten years ago now. The first defender is entitled to receive a sum equivalent to the proceeds of sale of the house. He is also entitled, in my opinion, to receive a sum representing the fruits of those proceeds during the period since the date of receipt of the sale proceeds. Without purporting to state any general principle, it seems to me that in the circumstances of the present case the sum payable to the first defender by way of such fruits should approximate as closely as possible to the amount that has actually been earned by deposit or investment of the proceeds since 2001, after deduction of any tax paid thereon. An example of the adoption of this approach is provided by one of the Australian cases to which I was referred, namely Ensor v Frisby [2009] QSC 268, at paragraphs 11 and 21.

[34] The first defender concludes, in his counterclaim, for payment of interest at the Bank of Scotland base rate as applying from time to time from September 2001 until payment. I was not provided with details of how the proceeds of sale have in fact been invested since 2001, but it does not appear from the terms of the confirmation that they have been on deposit with the Bank of Scotland. Counsel for the pursuer indicated that there is available a ledger which discloses interest attributed to the sale proceeds both before and since the date of the testatrix's death. I consider that, before pronouncing an interlocutor, I should be provided with further information as to what has been earned from the sale proceeds since 2001, and I shall accordingly put the case out By Order to be addressed on this matter.

Expenses

[35] Counsel were agreed that, so far as expenses are concerned, this action should be treated as one in which the litigation has been conducted reasonably and in good faith in the interests of the trust, the parties having co-operated with a view to obtaining a decision of the court on a point of law, and that it would be appropriate to find both parties entitled to their expenses from the executry estate on an indemnity, i.e. agent and client, client paying, basis. I agree that it is appropriate to make an award in these terms and will do so when my interlocutor is pronounced.