SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

NOTE BY SHERIFF A G McCULLOCH

in

Petition for Appointment of Executor Dative

by

DENNIS MURRAY

This is a Petition by Dennis Murray seeking to be decerned as executor dative qua son and next of kin of the deceased, Ronald Murray, who resided latterly at Parliament Place, Kinglassie, Fife.

The Petitioner is one of the four children of the deceased, who died on 4 February 2000. He was survived by his wife, Doris Murray, currently residing in a nursing home in Edinburgh, and by the four children. Service of the petition has been made on the other three children and no answers have been lodged.

The widow of the deceased was made subject of a guardianship order by the Sheriff at Edinburgh on 12 January 2011, with the petitioner in this matter being appointed as her guardian. Per incuriam the guardianship order does not contain a power for the guardian to make an application for appointment as executor dative.

The widow's prior rights will exhaust the whole estate of the deceased, Ronald Murray, which comprises his one-half share of the dwellinghouse at 4 Parliament Place, Kinglassie. It would appear that the family had understood that there was a survivorship clause within the title to the property at 4 Parliament Place, Kinglassie. However, this is not the case.

The normal procedure would have been for the widow to seek to be appointed as executor dative but, as she lacks capacity to do so, her guardian would in the normal course of events have the necessary power. In these circumstances, the application is made to be decerned as executor dative qua son and next of kin.

The matter that raises itself for concern is that current commissary practice is to consider that where the prior rights exhaust the whole intestate estate, the widow is presumed to have the "exclusive" right to be appointed. This appears to have been the law under the legislation in force before the passing of the Succession (Scotland) Act 1964. See Intestate Husband's Estate (Scotland) Acts of 1911 and 1919. Section 9(4) of the 1964 Act provides that:

"where by virtue of section 9(2) a surviving spouse or civil partner has rights to the whole intestate estate, he or she shall have the right to be appointed executor."

It appears that current commissary practice is to treat the surviving spouse whose prior rights exhaust the whole intestate estate as the sole person with the right to be appointed executor. However, that would appear to be a misunderstanding, or misreading, of the provisions of section 9(4). There is no exclusive right so to be appointed.

It therefore seems to me that those other than the surviving spouse may seek in these circumstances to be decerned as executor dative. It is perhaps unfortunate that the guardianship powers that have been granted are lacking. It would no doubt be possible to seek to apply to the Sheriff at Edinburgh for an amendment of the powers, or even for an intervention order. However, these procedures are more complex, time consuming and expensive than a straightforward petition to be decerned as executor dative qua son.

I therefore determine that the application is competent and can be granted.

A G McCulloch

Sheriff of Tayside, Central and Fife at Kirkcaldy

Kirkcaldy, 15 March 2012.