Dick v. Douglas [1924] ScotLR 529 (14 June 1924)

Dick v. Douglas [1924] ScotLR 529 (14 June 1924)

It is competent for the Court to appoint a tutor-dative to the person of an incapax while reserving the prior appointment of a curator bonis to the estate, especially where all parties consent and such an arrangement is in the best interests of the incapax. The eldest son, as nearest male agnate, is a suitable...

Source-derived case information.

Citation
[1924] ScotLR 529
Parties
Petitioner: Robert Dick; Petitioner: Thomas Dick; Petitioner: Mrs Janet Somerville Dick or Brown; Respondent: Mrs Mary Wylie Dick or Douglas; Respondent (curator Bonis): Charles J. Munro, C.A.
Jurisdiction
Scotland
Judgment Date
14 June 1924
Procedural Posture
Petition for Appointment of Tutor Dative / Final Judgment
Outcome
petition granted
Legal Topics
Appointment of Tutor Dative, Curator Bonis, Custody of Incapax, Guardianship, Incapacity
Family Law Mental Capacity Law Appointment of Tutor Dative Curator Bonis Custody of Incapax Guardianship Incapacity

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Parties

Robert Dick

Petitioner

Thomas Dick

Petitioner

Mrs Janet Somerville Dick or Brown

Petitioner

Mrs Mary Wylie Dick or Douglas

Respondent

Charles J. Munro, C.A.

Respondent (curator Bonis)

Procedural Posture

Petition for Appointment of Tutor Dative / Final Judgment

Legal Issues

  1. 1 Whether the Court can appoint a tutor-dative to the person of an incapax where a curator bonis is already appointed to the estate.
  2. 2 Whether the nearest male agnate (eldest son) can be appointed tutor-dative despite being heir-at-law.
  3. 3 Whether the arrangement of separate control of person and estate is in the best interests of the incapax.

Ratio Decidendi

It is competent for the Court to appoint a tutor-dative to the person of an incapax while reserving the prior appointment of a curator bonis to the estate, especially where all parties consent and such an arrangement is in the best interests of the incapax. The eldest son, as nearest male agnate, is a suitable appointee, and the old rule against heirs-at-law is not determinative in modern circumstances.

Court Disposition

petition granted

Orders

  • Robert Dick appointed tutor-dative to Mrs Janet Somerville Young or Dick, subject to reservation of the prior appointment of the curator bonis.
  • No order made for immediate surrender of the ward's person to the tutor-dative.