Smyth v. Rafferty & Ors [2011] ScotCS CSIH_27 (01 April 2011)

Smyth v. Rafferty & Ors [2011] ScotCS CSIH_27 (01 April 2011)

The court refused the reclaiming motion, holding that at this early stage it would be unjust to allow the sale of the Heriot Row properties and their contents, as it might deny the respondent an effective remedy if she ultimately succeeds in reducing the 2010 deeds. The respondent has pled a relevant prima facie case for reduction based on facility and circumvention, and the balance of convenience favours preserving the status quo until the legality of the 2010 documents is determined.

Citation
[2011] ScotCS CSIH_27
Parties
Pursuer and Respondent: Elizabeth Smyth; First, Second and Third Defenders and Reclaimers: John Campbell Rafferty and Others
Jurisdiction
Scotland
Judgment Date
01 April 2011
Procedural Posture
Reclaiming Motion in Civil Action / Interim Interdict Pending Principal Action for Reduction of Testamentary Deeds
Outcome
Reclaiming motion refused
Legal Topics
Testamentary Capacity, Facility and Circumvention, Interpretation of Wills, Interim Interdict, Reduction of Deeds
Succession Law Trusts and Estates Civil Procedure Testamentary Capacity Facility and Circumvention Interpretation of Wills Interim Interdict Reduction of Deeds

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Parties

Elizabeth Smyth

Pursuer and Respondent

John Campbell Rafferty and Others

First, Second and Third Defenders and Reclaimers

Procedural Posture

Reclaiming Motion in Civil Action / Interim Interdict Pending Principal Action for Reduction of Testamentary Deeds

Legal Issues

  1. 1 Whether interim interdict should be granted to prevent sale of Heriot Row properties pending resolution of action for reduction of 2010 testamentary deeds
  2. 2 Whether the respondent has a prima facie entitlement to the Heriot Row properties under the 2008 will

Ratio Decidendi

The court refused the reclaiming motion, holding that at this early stage it would be unjust to allow the sale of the Heriot Row properties and their contents, as it might deny the respondent an effective remedy if she ultimately succeeds in reducing the 2010 deeds. The respondent has pled a relevant prima facie case for reduction based on facility and circumvention, and the balance of convenience favours preserving the status quo until the legality of the 2010 documents is determined.

Court Disposition

Reclaiming motion refused

Orders

  • Interim interdict against sale or disposal of Heriot Row properties and their contents by reclaimers maintained pending resolution of principal action