EMMA VICTORIA SHAND & Ors AGAINST LESLIE DUNCAN AND JAMES L McNAUGHTON AS EXECUTORS NOMINATE OF THE LATE GEORGE SHAND [2016] ScotSC 6 (03 November 2016)

EMMA VICTORIA SHAND & Ors AGAINST LESLIE DUNCAN AND JAMES L McNAUGHTON AS EXECUTORS NOMINATE OF THE LATE GEORGE SHAND [2016] ScotSC 6 (03 November 2016)

The deed of variation was a contract only between the executors and the widow and could not alter the will or affect the rights of the pursuers as beneficiaries. The trustees' obligation to account to the pursuers arises only on the death of the widow, and prescription does not run from the date of the deed of variation. The defenders' pleas based on prescription and the deed of variation are repelled.

Citation
[2016] SC BAN 76 A35
Parties
Pursuers: Emma Victoria Shand and Others; Defenders: Leslie Duncan and James L McNaughton as Executors Nominate of the Late George Shand
Jurisdiction
Scotland
Judgment Date
03 November 2016
Procedural Posture
Action of Count, Reckoning and Payment / Interlocutory Judgment Following Debate on Prescription and Relevancy
Outcome
Defenders' pleas in law numbers 2, 4, 8 and 9 repelled; cause continued to procedural hearing; all questions of expenses reserved.
Legal Topics
Prescription and Limitation, Trustee Obligations, Deed of Variation, Beneficiary Rights
Trusts and Estates Succession Law Civil Procedure Prescription and Limitation Trustee Obligations Deed of Variation Beneficiary Rights

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Parties

Emma Victoria Shand and Others

Pursuers

Leslie Duncan and James L McNaughton as Executors Nominate of the Late George Shand

Defenders

Procedural Posture

Action of Count, Reckoning and Payment / Interlocutory Judgment Following Debate on Prescription and Relevancy

Legal Issues

  1. 1 Whether the defenders' obligation to account to the pursuers for the residue of the deceased's estate is extinguished by the long negative prescription under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the deed of variation altered the terms of the deceased's will or affected the rights of the pursuers
  3. 3 Whether the pursuers are entitled to an order for production of an account

Ratio Decidendi

The deed of variation was a contract only between the executors and the widow and could not alter the will or affect the rights of the pursuers as beneficiaries. The trustees' obligation to account to the pursuers arises only on the death of the widow, and prescription does not run from the date of the deed of variation. The defenders' pleas based on prescription and the deed of variation are repelled.

Court Disposition

Defenders' pleas in law numbers 2, 4, 8 and 9 repelled; cause continued to procedural hearing; all questions of expenses reserved.

Orders

  • Repel defenders’ pleas in law numbers 2, 4, 8 and 9
  • Continue cause to procedural hearing on 2 December 2016