FORBES AND OTHERS AGAINST ENOS McLEAN [2018] ScotCS CSOH_88 (24 August 2018)

FORBES AND OTHERS AGAINST ENOS McLEAN [2018] ScotCS CSOH_88 (24 August 2018)

It is competent and relevant under Scots law to sue a discharged executor for the purpose of constituting a claim against the estate of a deceased person, even after the estate has been distributed and the executor discharged, as established by binding Inner House authorities.

Citation
[2018] ScotCS CSOH_88
Parties
Pursuers: Mary Forbes and others; Defender: Enos McLean
Jurisdiction
Scotland
Judgment Date
24 August 2018
Procedural Posture
Personal Injury Action for Damages / Procedure Roll Debate; Interlocutor on Motion to Dismiss
Outcome
Defender's motion to dismiss refused; cause appointed to proof before answer.
Legal Topics
Executor Liability, Constitution of Claims Against Estates, Employers' Liability Insurance, Discharged Trustees, Mesothelioma From Asbestos Exposure
Personal Injury Trusts and Estates Insurance Law Executor Liability Constitution of Claims Against Estates Employers' Liability Insurance Discharged Trustees Mesothelioma From Asbestos Exposure

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Parties

Mary Forbes and others

Pursuers

Enos McLean

Defender

Procedural Posture

Personal Injury Action for Damages / Procedure Roll Debate; Interlocutor on Motion to Dismiss

Legal Issues

  1. 1 Is it competent and relevant to sue a discharged executor for the purpose of constituting a claim against the estate of a deceased employer?
  2. 2 Does the distribution of the estate and discharge of the executor preclude such an action?

Ratio Decidendi

It is competent and relevant under Scots law to sue a discharged executor for the purpose of constituting a claim against the estate of a deceased person, even after the estate has been distributed and the executor discharged, as established by binding Inner House authorities.

Court Disposition

Defender's motion to dismiss refused; cause appointed to proof before answer.

Orders

  • Proof before answer on the whole averments; all questions of expenses reserved.