Tracey Hamill as Executrix-Nominate James Murnin against Barry Murnin (Sheriff Court Civil) [2025] SCAIR 82 (22 September 2025)

Tracey Hamill as Executrix-Nominate James Murnin against Barry Murnin (Sheriff Court Civil) [2025] SCAIR 82 (22 September 2025)

The court found that the pleadings raised mixed questions of fact and law regarding the nature of the funds (trust, gift, contract, or agency), the validity of any testamentary or gratuitous obligations, and the sufficiency of specification. The court held that these issues could not be determined without hearing evidence and that neither party's case was bound to fail at this stage. Accordingly, the court reserved most pleas and allowed a proof before answer, with limited deletions to the record for irrelevance or lack of specification.

Citation
[2025] SCAIR 82
Parties
Pursuer: Tracey Hamill as Executrix-Nominate James Murnin; Defender: Barry Murnin
Jurisdiction
Scotland
Judgment Date
22 September 2025
Procedural Posture
Sheriff Court Civil / Interlocutory Judgment on Preliminary Pleas, Proof Before Answer Allowed
Outcome
Proof before answer allowed; most pleas reserved; limited deletions to record for irrelevance and lack of specification; defender's second plea in law repelled; parties to provide list of unsuitable dates for proof within 14 days.
Legal Topics
Trust Formation and Validity, Gifts and Donations, Prescription and Limitation, Testamentary Formalities, Joint Bank Accounts, Illegality and Public Policy
Trusts and Estates Family Law Civil Procedure Trust Formation and Validity Gifts and Donations Prescription and Limitation Testamentary Formalities Joint Bank Accounts +1 more

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Parties

Tracey Hamill as Executrix-Nominate James Murnin

Pursuer

Barry Murnin

Defender

Procedural Posture

Sheriff Court Civil / Interlocutory Judgment on Preliminary Pleas, Proof Before Answer Allowed

Legal Issues

  1. 1 Whether funds transferred to the defender were held in trust, as gifts, or under another legal arrangement
  2. 2 Whether the transfers were valid given the requirements for writing under the Requirements of Writing (Scotland) Act 1995
  3. 3 Whether any obligations to repay funds have prescribed under the Prescription and Limitation (Scotland) Act 1973

Ratio Decidendi

The court found that the pleadings raised mixed questions of fact and law regarding the nature of the funds (trust, gift, contract, or agency), the validity of any testamentary or gratuitous obligations, and the sufficiency of specification. The court held that these issues could not be determined without hearing evidence and that neither party's case was bound to fail at this stage. Accordingly, the court reserved most pleas and allowed a proof before answer, with limited deletions to the record for irrelevance or lack of specification.

Court Disposition

Proof before answer allowed; most pleas reserved; limited deletions to record for irrelevance and lack of specification; defender's second plea in law repelled; parties to provide list of unsuitable dates for proof within 14 days.

Orders

  • Delete defender's final sentence in Answer 3 of the record and defender's second plea in law.
  • Delete pursuer's final sentence on page 10 of the record.