GORDON JOHNSTONE AS EXECUTOR-NOMINATE OF THE LATE ELIZABETH KAYE AGAINST GORDON JOHNSTONE AS FORMER CONTINUING WELFARE ATTORNEY FOR THE LATE ELIZABETH KAYE AND GORDON JOHNSTONE AS EXECUTOR-NOMINATE OF THE LATE PETER KAYE [2023] ScotCS CSOH_30 (16 May 2023)

GORDON JOHNSTONE AS EXECUTOR-NOMINATE OF THE LATE ELIZABETH KAYE AGAINST GORDON JOHNSTONE AS FORMER CONTINUING WELFARE ATTORNEY FOR THE LATE ELIZABETH KAYE AND GORDON JOHNSTONE AS EXECUTOR-NOMINATE OF THE LATE PETER KAYE [2023] ScotCS CSOH_30 (16 May 2023)

The Power of Attorney conferred wide powers on the attorneys, not limited by the specific powers in clause 3.17. The attorneys did not breach fiduciary duty in executing the Deed of Variation, and their satisfaction as to benefit under section 1(2) of the 2000 Act was not shown to be unreasonable. However, the attorneys failed to comply with section 1(4) by not seeking the views of Mrs Kaye's nearest relatives, which was a breach of duty. Nevertheless, this breach did not justify reduction of the Deed of Variation, as the failure was not sufficiently serious or consequential to warrant setting aside the transaction.

Citation
[2023] ScotCS CSOH_30
Parties
Pursuer: Gordon Johnstone as Executor-nominate of the late Elizabeth Kaye; First Defender: Gordon Johnstone as former continuing and welfare attorney for the late Elizabeth Kaye; Second Defender: Gordon Johnstone as Executor-nominate of the late Peter Kaye; Third Defender: Blind Veterans UK
Jurisdiction
Scotland
Judgment Date
16 May 2023
Procedural Posture
Civil Declarator and Reduction / Procedure Roll Debate (preliminary Pleas) and Judgment
Outcome
Partial declarator granted; remainder of action dismissed
Legal Topics
Powers of Attorney, Fiduciary Duties, Adults With Incapacity (scotland) Act 2000, Deeds of Variation, Testamentary Capacity, Equitable Remedies
Trusts and Estates Mental Capacity Law Powers of Attorney Fiduciary Duties Adults With Incapacity (scotland) Act 2000 Deeds of Variation Testamentary Capacity Equitable Remedies

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Parties

Gordon Johnstone as Executor-nominate of the late Elizabeth Kaye

Pursuer

Gordon Johnstone as former continuing and welfare attorney for the late Elizabeth Kaye

First Defender

Gordon Johnstone as Executor-nominate of the late Peter Kaye

Second Defender

Blind Veterans UK

Third Defender

Procedural Posture

Civil Declarator and Reduction / Procedure Roll Debate (preliminary Pleas) and Judgment

Legal Issues

  1. 1 Whether attorneys acted within the scope of the Power of Attorney in executing the Deed of Variation
  2. 2 Whether attorneys breached fiduciary duties under common law and the Adults with Incapacity (Scotland) Act 2000
  3. 3 Whether failure to consult nearest relatives under section 1(4) of the 2000 Act invalidated the Deed of Variation

Ratio Decidendi

The Power of Attorney conferred wide powers on the attorneys, not limited by the specific powers in clause 3.17. The attorneys did not breach fiduciary duty in executing the Deed of Variation, and their satisfaction as to benefit under section 1(2) of the 2000 Act was not shown to be unreasonable. However, the attorneys failed to comply with section 1(4) by not seeking the views of Mrs Kaye's nearest relatives, which was a breach of duty. Nevertheless, this breach did not justify reduction of the Deed of Variation, as the failure was not sufficiently serious or consequential to warrant setting aside the transaction.

Court Disposition

Partial declarator granted; remainder of action dismissed

Orders

  • Declarator granted that the Deed of Variation was entered into in breach of duty under section 1(4) of the Adults with Incapacity (Scotland) Act 2000
  • All other conclusions and pleas dismissed