Moir v Moir [2013] ScotCS CSOH_177 (14 November 2013)

Moir v Moir [2013] ScotCS CSOH_177 (14 November 2013)

The deceased's will required a subsisting partnership business at the time of death, with the deceased as a partner and the second defender earning his living from that business, as determined by the trustees. The pursuer failed to aver and prove these conditions. The trustees' opinion is not challengeable except on limited grounds. The pursuer's claim for reduction and accounting is irrelevant and must be dismissed.

Citation
[2013] ScotCS CSOH_177
Parties
Pursuer: Alistair Moir; First Defender, Executrix Nominate of the Late Hugh Adam Moir and as an Individual: Carolyn Moir; Second Defender, Executor Nominate of the Late Hugh Adam Moir and as an Individual: Colin Hugh Moir; Third Defender, Executor Nominate of the Late Hugh Adam Moir: Neil Roderick Allan; Fourth Defender: Edna Murray Moir
Jurisdiction
Scotland
Judgment Date
14 November 2013
Procedural Posture
Ordinary Action / Procedure Roll Debate, Motion to Dismiss
Outcome
action dismissed
Legal Topics
Construction of Wills, Breach of Trust, Reduction of Disposition, Beneficiary Rights, Trustee Discretion
Trusts and Estates Property Law Construction of Wills Breach of Trust Reduction of Disposition Beneficiary Rights Trustee Discretion

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Parties

Alistair Moir

Pursuer

Carolyn Moir

First Defender, Executrix Nominate of the Late Hugh Adam Moir and as an Individual

Colin Hugh Moir

Second Defender, Executor Nominate of the Late Hugh Adam Moir and as an Individual

Neil Roderick Allan

Third Defender, Executor Nominate of the Late Hugh Adam Moir

Edna Murray Moir

Fourth Defender

Procedural Posture

Ordinary Action / Procedure Roll Debate, Motion to Dismiss

Legal Issues

  1. 1 Whether the pursuer is entitled to reduction of a disposition granted by executors of the deceased's estate.
  2. 2 Whether the pursuer is entitled to an accounting and payment of a share of the deceased's estate under the will.
  3. 3 Proper construction of Clause Two and Clause Four of the deceased's will regarding partnership capital and liferent entitlement.

Ratio Decidendi

The deceased's will required a subsisting partnership business at the time of death, with the deceased as a partner and the second defender earning his living from that business, as determined by the trustees. The pursuer failed to aver and prove these conditions. The trustees' opinion is not challengeable except on limited grounds. The pursuer's claim for reduction and accounting is irrelevant and must be dismissed.

Court Disposition

action dismissed

Orders

  • sustain second plea-in-law for first and second defenders
  • sustain first plea-in-law for fourth defender