RECLAIMING MOTION BY LESLEY CURRIE AGAINST SUSAN JANE BLAIR [2022] ScotCS CSIH_58 (20 December 2022)

RECLAIMING MOTION BY LESLEY CURRIE AGAINST SUSAN JANE BLAIR [2022] ScotCS CSIH_58 (20 December 2022)

A beneficiary may competently raise an action against the executor to require ingathering and accounting for assets alleged to be due to the estate, including debts arising from intromissions by a former attorney, but cannot directly sue the attorney for payment; the executor is accountable to the beneficiary for proper asset ingathering.

Citation
[2022] ScotCS CSIH_58
Parties
Pursuer and Reclaimer: Lesley Currie; Defender and Respondent: Susan Jane Blair, as Executor Nominate of the late John Currie
Jurisdiction
Scotland
Judgment Date
20 December 2022
Procedural Posture
Reclaiming Motion / Appeal Against Dismissal of Second Conclusion
Outcome
Lord Ordinary's interlocutor recalled in so far as it sustained the respondent's plea and dismissed the second conclusion; cause remitted to proceed as accords.
Legal Topics
Beneficiary Rights, Executor Duties, Attorney Accountability, Asset Ingathering
Trusts and Estates Executry Law Powers of Attorney Beneficiary Rights Executor Duties Attorney Accountability Asset Ingathering

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Parties

Lesley Currie

Pursuer and Reclaimer

Susan Jane Blair, as Executor Nominate of the late John Currie

Defender and Respondent

Procedural Posture

Reclaiming Motion / Appeal Against Dismissal of Second Conclusion

Legal Issues

  1. 1 Whether a beneficiary can require an executor to seek an account of intromissions by a former attorney with the deceased's assets
  2. 2 Whether a beneficiary has title to sue for payment of sums alleged to be due to the estate from the attorney

Ratio Decidendi

A beneficiary may competently raise an action against the executor to require ingathering and accounting for assets alleged to be due to the estate, including debts arising from intromissions by a former attorney, but cannot directly sue the attorney for payment; the executor is accountable to the beneficiary for proper asset ingathering.

Court Disposition

Lord Ordinary's interlocutor recalled in so far as it sustained the respondent's plea and dismissed the second conclusion; cause remitted to proceed as accords.

Orders

  • Recall of Lord Ordinary's interlocutor dated 10 February 2022 sustaining the fourth plea in law for the respondent and dismissing the second conclusion for the reclaimer.
  • Remit the cause to the Lord Ordinary to proceed as accords.