ANDERSON, RECLAIMING MOTION BY ILENE ANDERSON AND ANOTHER AGAINST GEORGE DAVIDSON WILSON [2019] ScotCS CSIH_4 (30 January 2019)

ANDERSON, RECLAIMING MOTION BY ILENE ANDERSON AND ANOTHER AGAINST GEORGE DAVIDSON WILSON [2019] ScotCS CSIH_4 (30 January 2019)

Beneficiaries of a deceased's beneficiary do not have title to sue for alleged diminution of the estate caused by facility and circumvention or undue influence; only the executor has such title. The right allegedly infringed was that of the deceased, not the beneficiaries. Any right of action prescribed five years after the disposition. Damages are not a competent remedy absent averment of a civil wrong. The action is dismissed and absolvitor granted.

Citation
[2019] ScotCS CSIH_4
Parties
Pursuers and Reclaimers: Ilene Anderson and another; Defender and Respondent: George Davidson Wilson
Jurisdiction
Scotland
Judgment Date
30 January 2019
Procedural Posture
Reclaiming Motion (appeal) / Appeal From Commercial Judge's Dismissal of Action
Outcome
Reclaiming motion refused; cross reclaiming motion allowed; action dismissed; absolvitor granted.
Legal Topics
Title to Sue of Beneficiaries, Facility and Circumvention, Undue Influence, Prescription (limitation of Actions), Competency of Damages as Remedy
Succession Law Delict (tort) Trusts and Estates Title to Sue of Beneficiaries Facility and Circumvention Undue Influence Prescription (limitation of Actions) Competency of Damages as Remedy

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Parties

Ilene Anderson and another

Pursuers and Reclaimers

George Davidson Wilson

Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) / Appeal From Commercial Judge's Dismissal of Action

Legal Issues

  1. 1 Do beneficiaries of a deceased's beneficiary have title to sue for alleged diminution of the estate caused by facility and circumvention or undue influence?
  2. 2 Is damages a competent remedy for facility and circumvention or undue influence absent fraud?
  3. 3 Has the action prescribed under the Prescription and Limitation (Scotland) Act 1973?

Ratio Decidendi

Beneficiaries of a deceased's beneficiary do not have title to sue for alleged diminution of the estate caused by facility and circumvention or undue influence; only the executor has such title. The right allegedly infringed was that of the deceased, not the beneficiaries. Any right of action prescribed five years after the disposition. Damages are not a competent remedy absent averment of a civil wrong. The action is dismissed and absolvitor granted.

Court Disposition

Reclaiming motion refused; cross reclaiming motion allowed; action dismissed; absolvitor granted.

Orders

  • Sustain defender’s second, fifth and sixth pleas-in-law
  • Grant absolvitor