Jackson v Fleming [1999] ScotCS 304 (22 December 1999)

Jackson v Fleming [1999] ScotCS 304 (22 December 1999)

The unregistered act and warrant did not evacuate the special destination; thus, the defender became infeft in the property upon the debtor's death. However, the defender, as heir of provision, is liable for the debtor's debts up to the value of the inherited share, and the trustee is entitled to recover this value for the benefit of creditors, notwithstanding the debtor's discharge.

Citation
[1999] ScotCS 304
Parties
Pursuer and Respondent: Bryan Alan Jackson; Defender and Appellant: Mrs. Elizabeth Fleming
Jurisdiction
Scotland
Judgment Date
22 December 1999
Procedural Posture
Appeal (and Cross Appeal) From Sheriff Court Decision / Judgment on Appeal and Cross Appeal
Outcome
Both the appeal and cross-appeal refused; case remitted to the sheriff to proceed as accords.
Legal Topics
Special Destination in Heritable Property, Trustee in Bankruptcy Rights, Heir of Provision Liability, Effect of Discharge in Sequestration, Evacuation of Special Destination
Bankruptcy Property Law Succession Special Destination in Heritable Property Trustee in Bankruptcy Rights Heir of Provision Liability Effect of Discharge in Sequestration Evacuation of Special Destination

Case Brief

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Parties

Bryan Alan Jackson

Pursuer and Respondent

Mrs. Elizabeth Fleming

Defender and Appellant

Procedural Posture

Appeal (and Cross Appeal) From Sheriff Court Decision / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether the trustee's unregistered act and warrant evacuated the special destination in heritable property upon the debtor's death
  2. 2 Whether the heir of provision (defender) is liable for the debtor's debts up to the value of the inherited share after the debtor's discharge from sequestration

Ratio Decidendi

The unregistered act and warrant did not evacuate the special destination; thus, the defender became infeft in the property upon the debtor's death. However, the defender, as heir of provision, is liable for the debtor's debts up to the value of the inherited share, and the trustee is entitled to recover this value for the benefit of creditors, notwithstanding the debtor's discharge.

Court Disposition

Both the appeal and cross-appeal refused; case remitted to the sheriff to proceed as accords.

Orders

  • Refusal of appeal by defender (Mrs. Fleming)
  • Refusal of cross-appeal by pursuer (Mr. Jackson)