NOTE RE CHARLES GARNETT [2016] ScotSC 80 (07 December 2016)

NOTE RE CHARLES GARNETT [2016] ScotSC 80 (07 December 2016)

The court has no discretion to waive the requirement for caution in large intestate estates; only Scottish Ministers may modify the statutory requirements. The court may vary the sum required for caution but cannot reduce it to nil.

Citation
[2016] ScotSC 80
Parties
Executor Dative/applicant: Charles Raymond Garnett Junior; Deceased: Charles Raymond Garnett; Beneficiary/respondent: Mr Garnett's sister
Jurisdiction
Scotland
Judgment Date
07 December 2016
Procedural Posture
Confirmation of Executor Dative (intestate Estate) / Application and Hearing for Waiver/reduction of Bond of Caution
Outcome
Application for waiver of caution refused; discretion to vary sum acknowledged but not exercised.
Legal Topics
Bond of Caution, Intestate Estates, Executor Dative, Small and Large Estates, Court Discretion
Succession Law Probate Bond of Caution Intestate Estates Executor Dative Small and Large Estates Court Discretion

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 5 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Charles Raymond Garnett Junior

Executor Dative/applicant

Charles Raymond Garnett

Deceased

Mr Garnett's sister

Beneficiary/respondent

Procedural Posture

Confirmation of Executor Dative (intestate Estate) / Application and Hearing for Waiver/reduction of Bond of Caution

Legal Issues

  1. 1 Does the court have discretion to waive the requirement for caution in intestate estates?
  2. 2 Can the court reduce the amount for which caution is sought?
  3. 3 Is there an anomaly in caution requirements depending on solicitor or sheriff clerk involvement?

Ratio Decidendi

The court has no discretion to waive the requirement for caution in large intestate estates; only Scottish Ministers may modify the statutory requirements. The court may vary the sum required for caution but cannot reduce it to nil.

Court Disposition

Application for waiver of caution refused; discretion to vary sum acknowledged but not exercised.

Orders

  • Caution required for confirmation of executor-dative in this large intestate estate.
  • No waiver or reduction to nil of caution permitted.