Lamont v. Mooney [2011] ScotCS CSOH_82 (13 May 2011)

Lamont v. Mooney [2011] ScotCS CSOH_82 (13 May 2011)

The court found that while the defender did intromit with the deceased's business and assets during the period of uncertainty following his death, her actions were not shown to be in bad faith or to amount to vitious intromissions or spulzie. The pursuer failed to establish that the defender had wrongfully withheld assets or failed to account for them to the extent claimed. The evidence did not support the pursuer's claim for delivery or damages beyond what had already been accounted for or delivered. The proposed amendment to introduce a case of spulzie was refused as inappropriate at this stage and on the facts.

Citation
[2011] ScotCS CSOH_82
Parties
Pursuer: Irene Brisbane Lamont; Defender: Teresa Mooney
Jurisdiction
Scotland
Judgment Date
13 May 2011
Procedural Posture
Count, Reckoning and Payment (with Alternative Conclusions for Delivery and Damages) / Judgment After Proof (trial)
Outcome
Pursuer's action refused; defender assoilzied (absolved) from the conclusions of the summons.
Legal Topics
Executry Administration, Intestate Succession, Accounting for Estate Assets, Spulzie, Damages for Vitious Intromissions, Sale of Business Assets
Succession Trusts and Estates Commercial Law Executry Administration Intestate Succession Accounting for Estate Assets Spulzie Damages for Vitious Intromissions +1 more

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Parties

Irene Brisbane Lamont

Pursuer

Teresa Mooney

Defender

Procedural Posture

Count, Reckoning and Payment (with Alternative Conclusions for Delivery and Damages) / Judgment After Proof (trial)

Legal Issues

  1. 1 Whether the defender properly accounted for all intromissions with the deceased's estate, particularly the business Glasgow Audio, during her period of control after the deceased's death and before the pursuer's appointment as Executrix Dative.
  2. 2 Whether the defender's actions amounted to vitious intromissions or spulzie, entitling the estate to damages or delivery of assets.
  3. 3 Whether the pursuer is entitled to delivery of specific assets (including a Mercedes vehicle and business stock) or damages for their loss.

Ratio Decidendi

The court found that while the defender did intromit with the deceased's business and assets during the period of uncertainty following his death, her actions were not shown to be in bad faith or to amount to vitious intromissions or spulzie. The pursuer failed to establish that the defender had wrongfully withheld assets or failed to account for them to the extent claimed. The evidence did not support the pursuer's claim for delivery or damages beyond what had already been accounted for or delivered. The proposed amendment to introduce a case of spulzie was refused as inappropriate at this stage and on the facts.

Court Disposition

Pursuer's action refused; defender assoilzied (absolved) from the conclusions of the summons.

Orders

  • Refusal of the pursuer's claims for count, reckoning and payment, delivery, and damages.
  • Refusal of leave to amend to introduce a case of spulzie.