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Cite as: [2022] ScotCS CSOH_88, [2022] CSOH 88

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OUTER HOUSE, COURT OF SESSION

[2022] CSOH 88

A58/21

OPINION OF LORD BRAILSFORD

In the cause

LESLEY CURRIE

Pursuer

against

SUSAN JANE BLAIR

Defender

Pursuer: Kinnear; Drummond Miller LLP

Defender: R.Macleod; Anderson Strathern LLP

10 February 2022

Introduction

[1]

John Currie ("the deceased") died on 16 January 2015. The pursuer, his daughter,

and defender, his adoptive daughter, are the main beneficiaries of his estate. On 2 April

2013, following the deterioration of the deceased's health, the parties were appointed his

attorneys under a continuing and welfare Power of Attorney. Only the defender intromitted

on the deceased's assets and property. The present action concerns the defender's

intromissions between her appointment as his attorney and the date of his death, as well as

her intromissions qua executor-nominate on the deceased's estate from the date of his death

until April 2015, being the date of closure of his bank accounts.

[2]

In the summons the pursuer seeks three remedies against the defender. First, for

production of the deceased's will. Secondly, for decree ordaining the defender qua executor-

nominate to seek a full account of her intromissions as attorney between 2 April 2013 and

16 January 2015, failing which an order for payment to the estate of £72,835.36 together with

interest due thereon. Thirdly, for decree ordaining the defender to produce a full account of

her vitious intromissions as executor-nominate from 16 January 2015 until 9 April 2015 and

for payment to the estate of £69,545.85 together with interest due thereon. In terms of this

final remedy, the pursuer contends that the defender intromitted with the deceased's estate

without obtaining a grant of confirmation and, as a result, those intromissions are vitiated.

[3]

The matter called before me on the Procedure Roll to determine the defender's

preliminary plea to the relevancy of the pursuer's case under her second conclusion. The

defender contends that the pursuer has no title to sue and the defender qua attorney has no

duty to account for her intromissions to the pursuer qua beneficiary.

The issue

[4]

By Power of Attorney executed on 2 April 2013 and registered on 16 September 2013,

the deceased appointed the parties as his attorneys. Clause seventeenth of the Power of

Attorney provides that the pursuer and defender shall be bound to account to the deceased

(as grantor) for their intromissions while acting as attorneys. It is agreed that the pursuer

did not intromit on the deceased's assets and property. The defender avers that the

deceased undertook his own financial transactions until November 2013. From this date, his

health deteriorated. He suffered from pulmonary fibrosis and latterly asbestosis. The

defender assumed responsibility for the deceased's care. She was responsible inter alia for

attending to him on a daily basis, shopping for him and making payments on his behalf. In

July 2014 the deceased's health deteriorated to such an extent that he entered a nursing

home. The defender thereafter arranged for his house to be sold. She remained responsible

for the deceased's financial matters from then until the date of his death.

[5]

The deceased executed a will on 13 November 2013. His wife had predeceased him.

The parties are the beneficiaries of his estate under the will. The deceased nominated the

defender as executor of his estate. Following his death, the defender made a number of

small payments of negligible value to the pursuer in respect of the estate. The pursuer avers

that she became suspicious of the low value of the estate as a result. She obtained

statements from the deceased's two bank accounts, which showed payments

totalling £72,835.36 between the date he entered the nursing home and the date of his death

and further payments totalling £69,545.85 between the date of death and closure of the

accounts. In respect of the former, the pursuer avers that the majority of the payments were

either made directly to the defender or concern expenditure unrelated to the deceased's

needs.

[6]

The defender does not dispute that payments were made from the deceased's

account directly to her. The value of these payments are not specified. However, it is

averred that such payments were gifts from the deceased. She contends that the deceased

made gifts to her, her son (the deceased's grandson) and his fiancé, all of which were

instructed by him before being implemented by the defender, the deceased having been

unable to do so due to his health. The defender believes that the deceased made these gifts

to show his gratitude for the care she provided to him and to equalise the gifts he has given

to the pursuer in the past.

The defender's preliminary plea

[7]

It is accepted that the defender qua executor-nominate can be called on by the

pursuer qua beneficiary to account for her intromissions with the deceased's estate.

However, in terms of the defender's intromissions as attorney, it is contended that the

pursuer lacks title to sue. As a beneficiary, she has no right to an accounting from the

deceased's former attorney. Express provision was made in clause seventeenth of the Power

of Attorney to the effect that the attorney was bound to account to the deceased as grantor.

There was no duty to account to any other party. The defender qua executor-nominate

stands eadem persona cum defuncto (as though the same person as the deceased)

(Pentland-Clark v Maclehose [2012] CSIH 29, Lord Carloway at paragraph 41). The duty to

account and the right to an account lies with the executor. The pursuer has no right or

interest in the defender's intromissions prior to the date of death.

[8]

Nor does a beneficiary have any right to seek payment from the defender qua

attorney should she fail to account for her intromissions. The ratio in Anderson v Wilson

2019 SC 271 (Lord Menzies at 279 under reference to Morrison v Morrison's Executrix 1912 SC 892),

is applicable to the instant case. The pursuer's argument fails to recognise the distinction in

rights and responsibilities of office holders in relation to different patrimonies.

The pursuer's response

[9]

The second conclusion is a competent and relevant claim. The pursuer has title to

bring the claim as a beneficiary of the deceased's will (cf Donald v Hodgart's Trs (1893) 21 R 246;

Clarke v Clark's Trs 1925 SC 693 ). The pursuer raised the action against the defender

qua executor-nominate to call on her to realise and account for the estate. This falls within

the duties of an executor. Where a beneficiary contends, as here, that the defender has failed

to realise an asset and should be debited with its value, the usual remedy is to raise an action

calling for him to realise and account for it (Wilson & Duncan, Trusts, Trustees & Executors,

Edn), 26-01 to 26-06). By refusing to seek an account in respect of her intromissions as

attorney, the defender qua executor-nominate is in breach of her fiduciary duty to the

pursuer qua beneficiary. She becomes a constructive trustee of any profit or benefit she

derives from that breach. She is liable to account and for any loss sustained by the

beneficiary (Stair Memorial Encyclopaedia, The Laws of Scotland, Reissue "Trusts, Trustees and

Judicial Factors", paragraphs 169-171 & 218-219).

[10]

Anderson v Wilson is distinguishable. The beneficiaries were held to lack title to sue a

third party for a debt due to the estate, whereas in the instant case the pursuer sues the

defender qua executor-nominate to account for assets she ought to have ingathered and

which had been intromitted with by the deceased's attorney. A claim against the attorney

for breach of duty is an asset of the estate. The fact that the defender is both attorney and

executor-nominate is not legally significant. The order sought seeks a remedy against her in

her capacity as executor-nominate.

Decision

[11]

The defender has produced the will. That being so, the first conclusion of the

summons was no longer necessary and, pursuant to the joint motion of the parties, I dismiss

it.

[12]

As to the competence of the second conclusion, the ratio in Anderson v Wilson applies

to this case. In Anderson the pursuers, as beneficiaries of the deceased's estate, raised an

action against the defender, one of the beneficiary's husbands and the deceased's son-in-law,

on the basis that he owed a debt to the estate. Inter alia it was averred that he had secured

the disposition of land to him by the deceased by means of fraud, facility and

circumvention, or undue influence. The commercial judge dismissed the action on the basis

that the pursuers had no title to sue. The pursuers reclaimed and the First Division upheld

the decision of the commercial judge. It held that beneficiaries had no right to determine the

extent or composition of the estate and thus, had no title to sue in these circumstances:

"[31] We agree with the submission by senior counsel for the defender and

respondent that the right of beneficiaries to a deceased's estate does not amount to a

right to determine what the estate constitutes. The right of the beneficiaries is to

inherit the estate as it is. The right to determine what is in the estate (its composition

and extent) rests with the executor as the representative of the former proprietor of

the estate. It is necessary to consider what is the nature of the right which the

pursuers allege to have been infringed. There is no right of succession which is

averred to have been infringed; rather, it is the right of the deceased himself which is

averred to have been infringed, not a right of his beneficiaries. Title to sue (by

whatever remedy is sought) rests with the executor, not with the beneficiaries."

The same considerations apply in the instant case. The thrust of the pursuer's claim in the

second conclusion to the summons is that the defender qua attorney's intromissions with the

deceased's assets and property ought to have formed part of the estate. That is on all fours

with the circumstances in Anderson. The pursuer qua beneficiary has no right or interest in

the composition of the estate. It is for the defender qua executor-nominate to determine.

Only where the pursuer can demonstrate such an interest can an action competently be

taken or, in other words, will she have title to sue (Hutcheson & Co's Administrator v Taylor's

Executrix 1931 SLT 356, Lord Morison at 360; D & J Nicol v Dundee Harbour Trs 1915 SC

(HL) 7, Lord Dunedin at page 11). Her right and interest is limited to succession to the

estate as it was on 16 January 2015. I do not understand the pursuer to be averring that the

defender qua executor-nominate has infringed any such right.

[13]

That the defender qua attorney is not required to account for her intromissions to

beneficiaries is not only a necessary implication of Anderson, but also follows from the

express terms of the Power of Attorney itself. Clause seventeenth provides that the

attorneys shall only be bound to account for their intromissions with the deceased's assets

and property to the grantor, that is, the deceased. The defender qua executor-nominate steps

into the shoes of the deceased upon his death. It follows that the attorneys are only bound

to account for their intromissions to the defender qua executor-nominate. I acknowledge

that, in the present circumstances, this raises the peculiarity that the defender qua attorney

can only be required to account for her intromissions to herself in a different capacity.

However, that is not a reason to abandon established legal principles. It remains that

beneficiaries have no right or interest to determine the composition of the estate. That is

what the pursuer seeks to do in the second conclusion.

[14]

I am not convinced by the pursuer's submission that Anderson is distinguishable

from the instant case on the basis that, here, the pursuer seeks an order ordaining the

defender qua executor-nominate to seek an account of her intromissions as attorney. I

understand this submission to be an attempt to distinguish the instant case from

circumstances where the beneficiary seeks an account from the attorney directly. Such a

distinction appears to me artificial and to recognise it would be to permit an otherwise

incompetent action to succeed through the back door. In any event the pursuer is not left

without remedy, should she consider that the defender qua executor-nominate has failed to

realise assets and hence owes a debt to the estate. The proper approach is that set out by

Lord Rodger of Earlsferry in Roberts v Gill & Co [2011] 1 AC 240 in the context of trustees:

"87. ...Unquestionably, the general rule is that the beneficiary of a trust cannot sue a

debtor of the trust: the relevant right of action is vested in the trustees and it is for

them to enforce that right by raising an action, if appropriate. Where the trustees

decline to take proceedings but the beneficiary insists, he can require them to assign

the right of action or to permit him to use their name, provided that he gives them an

indemnity for any liability for expenses."

Thus, the pursuer qua beneficiary, if of the belief that a debt is due to the estate, may bring

proceedings in the name of the defender qua executor-nominate against the defender qua

attorney. Neither of the other cases to which the pursuer refers, namely Donald v Hodgart's

Trs and Clarke v Clarke's Trs, support the proposition that a former attorney is required to

account for her intromissions with the deceased's assets and property to the beneficiaries of

the deceased's estate. Both are distinguishable on their facts. Both concerned the trustees'

intromissions with the deceased's trust estate.