Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

Case Ref: AW18/07

Minuter : McLeod, Morton Fraser

Edinburgh 21st July 2010

The sheriff, having resumed consideration of the cause answers the questions in the Minute for Directions as follows: (a) yes; (b) yes; (c) no; grants leave to the guardian to make such application as he may be advised in relation to the heritage in which the adult may have an interest; directs that the expenses of the Minute be expenses in the adult's estate as the same may be taxed.

[1] The Minuter is the guardian "(the guardian") of the adult Georgina Mabel Bruce ("the adult") pursuant to an order in his favour dated 27th August 2007 conferring upon him certain powers in relation to the financial affairs of the adult. The powers were granted pursuant to the Adults with Incapacity (Scotland) Act 2000 ("the 2000 Act").

[2] The adult was the wife of the late Robert Bruce who died on 6th April 2010 ("the deceased"). In the terms of his will dated 14th May 1985 and registered in the Books of Council and Session on 19th April 2010 ("the will") the deceased appointed the adult to be his sole executor and the sole beneficiary of his estate.

[3] Certain matters of practice have arisen out of the foregoing circumstances. The guardian has lodged a petition seeking his appointment as executor dative of the deceased's estate. He has also lodged a Minute seeking directions pursuant to section 3(3) of the 2000 Act. Intimation of the Minute was made to the Office of the Public Guardian. The Public Guardian lodged written submissions which are broadly supportive of the position adopted by the guardian. The guardian has posed certain questions seeking specific directions. I will refer to these at the end of my judgement.

[4] For the guardian, Mr McLeod lodged written submissions which I found most helpful. In short, the issue in this matter raises certain issues as to the interaction between commissary practice and the 2000 Act. It is easiest to begin with analysing what the position would have been prior to the enactment of the 2000 Act. Mr McLeod referred me to pages 279-283 of Currie on Confirmation of Executors (8^th Edition) ("Currie") published before the enactment of the 2000 Act. Put broadly, the rule was, and in my view remains, that a person who is entitled to be confirmed as executor cannot be so confirmed personally if he or she is incapax (paragraph 8.41 of Currie). If the incapax already had a curator bonis appointed it was competent for the curator bonis to seek to be confirmed as executor. There is what appears to be a somewhat tentative suggestion in Currie (at paragraph 8.52.2 and 8.53.2) that a curator bonis might be entitled to seek confirmation and give up an inventory with little or no other procedure. It is also suggested that the curator bonis might be entitled to seek to be appointed executor dative pursuant to the Act of Sederunt of 13th February 1730 ("the 1730 Act") at least in circumstances where, as here, the incapax is the universal legatory. I hasten to add what I have set out above is only a very broad outline of a more complex position. In particular, I have to say it is not entirely clear to me whether a curator bonis was entitled to be appointed as executor dative in circumstances which I have described solely pursuant to the 1730 Act or at common law or, for that matter, both. The 1730 Act is conveniently reproduced as an appendix in Judicial Factors, NML Walker. The relevant part is as follows:-

"The Lords of Council and Session, considering that they have often been applied to for appointing factors...of persons... who are under some incapacity for the time to manage their own estates, to the end that the estates of such... persons may not suffer in the meantime but be preserved for their behoof, and of all having interests therein: Therefore, that such persons may be under due regulations and security for the faithful and punctual fulfilling of their trust, the said Lords of Council and Session do hereby declare or ordain, That all such factors as aforesaid, appointed and authorised by them, shall be liable to pay and perform as follows:-

...

7. Where it is necessary by law that such money, or effects, or moveables should be confirmed, the said factor may confirm the same in his own name as executor dative and as factor appointed by the Lords of Council and Session on the estate of such a person, and for the use and behoof of the said person and of all that have or shall have interest, unless some other person having a title offer to confirm, and shall put in the [the] clerk's hands a just and full copy of the said testament..."

The learned editor of Currie (at paragraph 8.68) comments that the 1730 Act regulated the duties of factors applying, inter alia, to "persons who are under some incapacity for the time to manage their own estates (factor curator bonis (sic)". On one reading of the text, it might be said that all the 1730 Act did was to regulate what appears to have been an existing practice. The difficulty is the reform brought about by the 2000 Act. Section 80 of the 2000 Act has abolished the office of curator bonis. Read short, paragraph 1 of schedule 5 provides that any reference in an instrument or document to a curator bonis is to be construed as a reference to a guardian appointed under the 2000 Act. For the purposes of dealing with the present issue I am inclined to equate the position of guardian under the 2000 Act with that of curator bonis under the old law.

[5] One of the questions raised before me is whether, in terms of the interlocutor dated 27th August 2007, the guardian has the power to present an application seeking to be appointed executor dative? Paragraph (j) of that interlocutor gives the guardian the power "to raise or defend... any actions or judicial or other proceedings in which the adult may be interested so far as they (sic) may consider necessary or expedient". In my opinion, the power conferred upon the guardian is broad enough to extend to the presentation of an application seeking appointment as executor dative. Such an application would, for the purposes of the interlocutor, be an "action or judicial or other proceeding". I am also of the view that, as universal legatory, the adult would have the necessary interest. Having said that, in the future, when considering the drafting of such powers, it may be useful to make express reference to commissary proceedings so as to put the matter beyond doubt.

[6] A further matter raised is whether, given the functions conferred upon him as guardian of the adult, it is necessary for the Minuter to apply to be appointed as executor dative as guardian of the adult in respect of the estate of the deceased. In my opinion the answer to that question is yes. The powers and functions conferred upon the guardian include "(a) the power to collect ...[and] receive all sums, property or rights due or which may become due to the adult." The guardian is the adult's financial guardian. The adult is the universal legatory under the will. On any view, the adult has an interest in the estate of the deceased.

[7] Having regard to some of the passages in Currie, particularly at paragraph 8.52 and 8.53, there is some uncertainty as to whether it would be open to the guardian to put up an inventory without seeking appointment as executor dative to the estate of the deceased. In my opinion, Mr McLeod is correct in saying that proceeding in that way presents a number of practical difficulties and does depend upon how one reads certain passages in Currie. The matter is less than clear. I also consider Mr McLeod is correct when he says that it is extremely doubtful whether the guardian could present a petition seeking to be confirmed as executor nominate qua the adult. The adult was nominated personally by her late husband to be his executor. It would seem an odd situation for the guardian to attempt to substitute himself as executor nominate.

[8] In my opinion, the guardian was well justified in seeking directions from the court on this matter. The conditions set out in section 3(3) of the 2000 Act concerning interest are fully satisfied. The questions which the Minuter puts are as follows:-

(a) Whether the powers conferred on the Minuter, as guardian of the adult, (conform to guardianship order in his favour) are sufficient to enable the Minuter to apply for and be appointed as executor dative qua guardian of the adult in respect of the deceased?

In my opinion, the answer is yes. I consider that the power conferred in (j) above is sufficient to enable the application to be made.

(b) Whether it is necessary for the Minuter in exercising his functions as guardian of the adult, (conform to guardianship order in his favour) to apply to be appointed as executor dative qua guardian of the adult in respect of the deceased?

The question relates to whether, given the will, the guardian ought to proceed to secure the adult's interest and ingather the estate. Accordingly, for the reasons I have given above, the answer to the foregoing question is yes.

(c) Whether, in the event of the Minuter withdrawing his application to become appointed as executor dative qua guardian of the adult in respect of the deceased, the Minuter may without such appointment act as executor dative qua guardian of the adult, and may properly give up an inventory for confirmation in that capacity?

In my opinion, the correct procedure for the guardian is to apply to be appointed executor dative and not to proceed without doing so. For reasons I have given the answer to the question is no.

[9] As a consequence of my judgement the Minuter's petition to be appointed as executor dative should now proceed. In the course of his submissions to me, Mr McLeod said that it may be necessary to consider further procedure dealing with the house in which the adult and the deceased lived. There was a tentative suggestion that it might be necessary to seek an intervention order. Without expressing any concluded view, I have some reservations as to whether an intervention order is appropriate given that the guardian has a series of existing powers. I would have thought such a matter would amount to a variation of the guardian's existing powers rather than requiring an intervention order. However, I shall grant leave to the guardian to make such application as he may be so advised in relation to the heritage in which the adult has or may have an interest. I can be addressed in more detail on that point at a later stage should it be necessary.

[10] The expenses of this Minute fall to be paid out of the adult's estate as the same may be taxed.