MORTON MINUTE APPLICATIONS FOR DIRECTIONS [2010] ScotSC 123 (21 July 2010)

MORTON MINUTE APPLICATIONS FOR DIRECTIONS [2010] ScotSC 123 (21 July 2010)

A guardian appointed under the Adults with Incapacity (Scotland) Act 2000, with powers to raise or defend actions or proceedings, has sufficient authority to apply for and be appointed as executor dative of an estate in which the adult is the universal legatee. Such appointment is necessary to properly secure and ingather the estate for the adult's benefit. The guardian cannot act as executor dative or give up an inventory for confirmation without formal appointment.

Citation
[2010] ScotSC 123
Parties
Minuter/guardian: Robin James Scott Morton; The Adult: Georgina Mabel Bruce
Jurisdiction
Scotland
Judgment Date
21 July 2010
Procedural Posture
Minute for Directions Under Section 3(3) of the Adults With Incapacity (scotland) Act 2000 / Judgment on Application for Directions
Outcome
Questions (a) and (b) answered yes; question (c) answered no. Leave granted to guardian to make further application regarding heritage. Expenses to be paid from the adult's estate as taxed.
Legal Topics
Guardianship Powers, Executor Dative Appointment, Adults With Incapacity (scotland) Act 2000, Commissary Practice
Mental Capacity Law Succession Law Guardianship Powers Executor Dative Appointment Adults With Incapacity (scotland) Act 2000 Commissary Practice

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Parties

Robin James Scott Morton

Minuter/guardian

Georgina Mabel Bruce

The Adult

Procedural Posture

Minute for Directions Under Section 3(3) of the Adults With Incapacity (scotland) Act 2000 / Judgment on Application for Directions

Legal Issues

  1. 1 Whether a guardian under the Adults with Incapacity (Scotland) Act 2000 can apply to be appointed executor dative of an estate where the adult is the universal legatee
  2. 2 Whether it is necessary for the guardian to apply for such appointment
  3. 3 Whether the guardian can act as executor dative without formal appointment

Ratio Decidendi

A guardian appointed under the Adults with Incapacity (Scotland) Act 2000, with powers to raise or defend actions or proceedings, has sufficient authority to apply for and be appointed as executor dative of an estate in which the adult is the universal legatee. Such appointment is necessary to properly secure and ingather the estate for the adult's benefit. The guardian cannot act as executor dative or give up an inventory for confirmation without formal appointment.

Court Disposition

Questions (a) and (b) answered yes; question (c) answered no. Leave granted to guardian to make further application regarding heritage. Expenses to be paid from the adult's estate as taxed.

Orders

  • Guardian has leave to apply for appointment as executor dative qua guardian of the adult.
  • Guardian may make further application regarding heritage as advised.