Duncan & Ors v Tanner Or Duncan [2000] ScotCS 213 (27 July 2000)

Duncan & Ors v Tanner Or Duncan [2000] ScotCS 213 (27 July 2000)

The defender, as executor and universal beneficiary, became personally liable for payment of legitim to the pursuers by distributing the estate to herself without satisfying the debt due to them. There was no relevant defence to the pursuers' claim for payment of legitim and interest as previously decreed.

Citation
[2000] ScotCS 213
Parties
Pursuers: Alan Duncan and Others; Defender: Patricia Tanner or Duncan
Jurisdiction
Scotland
Judgment Date
27 July 2000
Procedural Posture
Civil / Procedure Roll; Decree De Plano on First Part of Conclusions, Proof Before Answer on Second Part
Outcome
Decree granted to each pursuer for the first part of their conclusions; proof before answer allowed on the second part (expenses).
Legal Topics
Legal Rights (legitim), Executor's Liability, Distribution of Estate, Interest on Debts, Prescription
Succession Law Trusts and Estates Legal Rights (legitim) Executor's Liability Distribution of Estate Interest on Debts Prescription

Case Brief

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Parties

Alan Duncan and Others

Pursuers

Patricia Tanner or Duncan

Defender

Procedural Posture

Civil / Procedure Roll; Decree De Plano on First Part of Conclusions, Proof Before Answer on Second Part

Legal Issues

  1. 1 Whether the defender as executor is personally liable for payment of legitim to the pursuers after distributing the estate to herself without satisfying the debt
  2. 2 Whether the claim for legitim has prescribed under the Prescription and Limitation (Scotland) Act 1973
  3. 3 Whether interest at 8% per annum is payable on the sum decerned

Ratio Decidendi

The defender, as executor and universal beneficiary, became personally liable for payment of legitim to the pursuers by distributing the estate to herself without satisfying the debt due to them. There was no relevant defence to the pursuers' claim for payment of legitim and interest as previously decreed.

Court Disposition

Decree granted to each pursuer for the first part of their conclusions; proof before answer allowed on the second part (expenses).

Orders

  • Sustain pursuers' third plea-in-law to the extent of granting decree for payment of legitim and interest as previously decreed.
  • Allow proof before answer on the amount of unpaid expenses in the original action.