Accountant Bankruptcy v. Mackay, [2004] ScotCS 122 (26 May 2004)

Accountant Bankruptcy v. Mackay, [2004] ScotCS 122 (26 May 2004)

If the defender can prove that a trust was constituted at the time the debtor took title, the property is excluded from the bankrupt estate under section 33(1)(b) of the 1985 Act; writing was not required for constitution of such a trust prior to the 1995 Act, and proof is now governed by the 1995 Act, allowing proof prout de jure.

Citation
[2004] ScotCS 122
Parties
Pursuer: The Accountant in Bankruptcy and another; Defender: Jessie Anne Mackay
Jurisdiction
Scotland
Judgment Date
26 May 2004
Procedural Posture
Civil Bankruptcy/reduction / Procedure Roll (plea in Law on Relevancy)
Outcome
Proof before answer allowed; question of expenses reserved.
Legal Topics
Gratuitous Alienation, Trusts Over Heritable Property, Requirements of Writing, Vesting of Property in Bankruptcy, Personal Vs Real Rights
Bankruptcy Trusts and Estates Property Law Gratuitous Alienation Trusts Over Heritable Property Requirements of Writing Vesting of Property in Bankruptcy Personal Vs Real Rights

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Parties

The Accountant in Bankruptcy and another

Pursuer

Jessie Anne Mackay

Defender

Procedural Posture

Civil Bankruptcy/reduction / Procedure Roll (plea in Law on Relevancy)

Legal Issues

  1. 1 Whether property transferred by the debtor to his wife prior to sequestration was held in trust and thus excluded from the bankrupt estate under section 33(1)(b) of the Bankruptcy (Scotland) Act 1985
  2. 2 Whether the constitution or proof of such a trust required writing under Scots law, particularly pre-1995

Ratio Decidendi

If the defender can prove that a trust was constituted at the time the debtor took title, the property is excluded from the bankrupt estate under section 33(1)(b) of the 1985 Act; writing was not required for constitution of such a trust prior to the 1995 Act, and proof is now governed by the 1995 Act, allowing proof prout de jure.

Court Disposition

Proof before answer allowed; question of expenses reserved.

Orders

  • Proof before answer allowed on the defender's averments that the property was held in trust and thus excluded from the bankrupt estate under section 33(1)(b) of the 1985 Act.
  • Question of expenses reserved.