Shenken & Anor v Phoenix Life Ltd [2015] ScotCS CSOH_96 (17 July 2015)

Shenken & Anor v Phoenix Life Ltd [2015] ScotCS CSOH_96 (17 July 2015)

Mr Schwartz did not have title, in any capacity, to receive the proceeds of the policy settled in Mr Pinder’s trust, as Scots law requires statutory procedures to be followed for lapsed trusts and the exception in section 11 of the Revenue Act 1884 does not apply to trust property. The pursuers did not have title to sue for Mrs Betty Pinder’s policy at the commencement of the action, but the defect was curable by amendment once the correct trustees were in place, allowing both claims to proceed together.

Citation
[2015] ScotCS CSOH_96
Parties
Pursuers: Mark Shenken and Another; Defenders: Phoenix Life Limited
Jurisdiction
Scotland
Judgment Date
17 July 2015
Procedural Posture
Civil (trusts/insurance) / Opinion After Debate on Specific Legal Issues
Outcome
Case put out by order for further procedure; no final decree pronounced.
Legal Topics
Lapsed Trusts, Entitlement to Life Policy Proceeds, Title to Sue, Foreign Executors, Trustee Appointment, Amendment of Pleadings
Trust Law Private International Law Insurance Law Lapsed Trusts Entitlement to Life Policy Proceeds Title to Sue Foreign Executors Trustee Appointment +1 more

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Parties

Mark Shenken and Another

Pursuers

Phoenix Life Limited

Defenders

Procedural Posture

Civil (trusts/insurance) / Opinion After Debate on Specific Legal Issues

Legal Issues

  1. 1 Whether Mr Schwartz, as personal representative of Mr Pinder, had title to receive the proceeds of the policy in Mr Pinder’s trust
  2. 2 Whether the pursuers have title to sue for the proceeds of Mrs Betty Pinder’s policy

Ratio Decidendi

Mr Schwartz did not have title, in any capacity, to receive the proceeds of the policy settled in Mr Pinder’s trust, as Scots law requires statutory procedures to be followed for lapsed trusts and the exception in section 11 of the Revenue Act 1884 does not apply to trust property. The pursuers did not have title to sue for Mrs Betty Pinder’s policy at the commencement of the action, but the defect was curable by amendment once the correct trustees were in place, allowing both claims to proceed together.

Court Disposition

Case put out by order for further procedure; no final decree pronounced.

Orders

  • Case to be put out by order to address terms of interlocutor and further procedure.
  • Questions of expenses reserved.