ELIZABETH DOBBIE (EXECUTRIX-DATIVE OF THE DECEASED MRS ELLEN MCGOWAN OR PATTON) AGAINST MICHAEL PATTON (EXECUTOR-DATIVE TO THE DECEASED MRS ELLEN MCGOWAN OR PATTON) [2016] ScotSC 6 (19 January 2016)

ELIZABETH DOBBIE (EXECUTRIX-DATIVE OF THE DECEASED MRS ELLEN MCGOWAN OR PATTON) AGAINST MICHAEL PATTON (EXECUTOR-DATIVE TO THE DECEASED MRS ELLEN MCGOWAN OR PATTON) [2016] ScotSC 6 (19 January 2016)

The defender's appointment as executor-dative was procedurally defective because he failed to intimate his petition to the already appointed executrix-dative, as required by statute. The obligation to disclose prior appointments and seek intimation rests with the petitioner, not the sheriff clerk. The defender's failure to follow correct procedure invalidated his appointment, warranting recall.

Citation
[2016] ScotSC 6
Parties
Pursuer (executrix Dative of the Deceased Mrs Ellen Mc Gowan or Patton): Elizabeth Dobbie; Defender (executor Dative to the Deceased Mrs Ellen Mc Gowan or Patton): Michael Patton
Jurisdiction
Scotland
Judgment Date
19 January 2016
Procedural Posture
Petition to Recall Appointment of Executor Dative / Judgment After Hearing on Recall Petition
Outcome
Pursuer's motion granted; defender's appointment as executor-dative recalled.
Legal Topics
Appointment of Executors Dative, Recall of Executor Appointment, Intimation Requirements, Sheriff Courts (scotland) Act 1876, Confirmation of Executors (scotland) Act 1858
Succession Law Civil Procedure Appointment of Executors Dative Recall of Executor Appointment Intimation Requirements Sheriff Courts (scotland) Act 1876 Confirmation of Executors (scotland) Act 1858

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Parties

Elizabeth Dobbie

Pursuer (executrix Dative of the Deceased Mrs Ellen Mc Gowan or Patton)

Michael Patton

Defender (executor Dative to the Deceased Mrs Ellen Mc Gowan or Patton)

Procedural Posture

Petition to Recall Appointment of Executor Dative / Judgment After Hearing on Recall Petition

Legal Issues

  1. 1 Whether the appointment of a second executor-dative without intimation to the existing executrix-dative was valid
  2. 2 Whether the pursuer had legal capacity to bring the recall petition as executrix-dative
  3. 3 Whether the defender's appointment should be recalled due to procedural irregularity

Ratio Decidendi

The defender's appointment as executor-dative was procedurally defective because he failed to intimate his petition to the already appointed executrix-dative, as required by statute. The obligation to disclose prior appointments and seek intimation rests with the petitioner, not the sheriff clerk. The defender's failure to follow correct procedure invalidated his appointment, warranting recall.

Court Disposition

Pursuer's motion granted; defender's appointment as executor-dative recalled.

Orders

  • Recall of decree granted on 21 March 2014 appointing defender as executor-dative on the estate of Ellen McGowan or Patton.
  • Hearing on expenses assigned for 14 January 2016 at 9.30 am.