PETITION OF WILLIAM GEORGE POLLOCK AS EXECUTOR NOMINATE OF THE LATE ALEXANDER MILLER FOR AN AWARD OF SEQUESTRATION OF THE ESTATE OF THE LATE ALEXANDER MILLER [2016] ScotSC 48 (25 July 2016)

PETITION OF WILLIAM GEORGE POLLOCK AS EXECUTOR NOMINATE OF THE LATE ALEXANDER MILLER FOR AN AWARD OF SEQUESTRATION OF THE ESTATE OF THE LATE ALEXANDER MILLER [2016] ScotSC 48 (25 July 2016)

An executor does not have an absolute right to seek sequestration of a deceased's estate without demonstrating insolvency; insolvency must be established before sequestration can be awarded, and where insolvency is contested, proof is required.

Citation
[2016] ScotSC 48
Parties
Petitioner: William George Pollock; Respondent: Alexander Douglas Miller
Jurisdiction
Scotland
Judgment Date
25 July 2016
Procedural Posture
Petition for Sequestration of Deceased's Estate / Hearing on Petition and Answers; Decision on Legal Point; Subsequent Dismissal After Appeal Abandoned
Outcome
Petition for sequestration refused without proof; proof required on insolvency; leave to appeal granted; case ultimately dismissed after appeal abandoned.
Legal Topics
Sequestration of Deceased's Estate, Executor's Powers and Duties, Requirement of Insolvency for Sequestration
Insolvency Succession Bankruptcy Sequestration of Deceased's Estate Executor's Powers and Duties Requirement of Insolvency for Sequestration

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Parties

William George Pollock

Petitioner

Alexander Douglas Miller

Respondent

Procedural Posture

Petition for Sequestration of Deceased's Estate / Hearing on Petition and Answers; Decision on Legal Point; Subsequent Dismissal After Appeal Abandoned

Legal Issues

  1. 1 Whether an executor can petition for sequestration of a deceased's estate without proof of insolvency
  2. 2 Whether insolvency must be demonstrated before sequestration is awarded

Ratio Decidendi

An executor does not have an absolute right to seek sequestration of a deceased's estate without demonstrating insolvency; insolvency must be established before sequestration can be awarded, and where insolvency is contested, proof is required.

Court Disposition

Petition for sequestration refused without proof; proof required on insolvency; leave to appeal granted; case ultimately dismissed after appeal abandoned.

Orders

  • Proof fixed on issue of insolvency; leave to appeal granted; expenses to be paid out of the estate; case dismissed by agreement after appeal abandoned.