THE EXECUTORS OF MRS ALISON CATHERINE REZAC v. THE EXECUTRIX NOMINATE OF WILLIAM JOSEPH REZAC [2014] ScotSC 42 (02 May 2014)

THE EXECUTORS OF MRS ALISON CATHERINE REZAC v. THE EXECUTRIX NOMINATE OF WILLIAM JOSEPH REZAC [2014] ScotSC 42 (02 May 2014)

The will of Mrs Rezac contained a clear direction that, on termination of the liferent, her interest in the property was to be made over to her nephew, not sold. The general powers of sale in the will and under statute could not be exercised in a manner at variance with this specific direction. Therefore, the executors had no power, right, or title to insist on an action of division or sale of the property.

Citation
[2014] ScotSC 42
Parties
Pursuer: The Executors of Mrs Alison Catherine Rezac; Defender: The Executrix Nominate of William Joseph Rezac
Jurisdiction
Scotland
Judgment Date
02 May 2014
Procedural Posture
Civil / Judgment After Proof (trial)
Outcome
Defender assoilzied (absolvitor granted); pursuers' claim dismissed.
Legal Topics
Powers of Executors, Construction of Wills, Trust Purposes, Statutory Powers of Sale, Division and Sale of Property
Succession Law Trusts and Estates Powers of Executors Construction of Wills Trust Purposes Statutory Powers of Sale Division and Sale of Property

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 3 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

The Executors of Mrs Alison Catherine Rezac

Pursuer

The Executrix Nominate of William Joseph Rezac

Defender

Procedural Posture

Civil / Judgment After Proof (trial)

Legal Issues

  1. 1 Whether the executors of Mrs Alison Catherine Rezac have power to insist on an action of division or sale of the property contrary to the terms of the will.
  2. 2 Whether statutory powers under the Trusts (Scotland) Act 1921 permit sale of the property in these circumstances.

Ratio Decidendi

The will of Mrs Rezac contained a clear direction that, on termination of the liferent, her interest in the property was to be made over to her nephew, not sold. The general powers of sale in the will and under statute could not be exercised in a manner at variance with this specific direction. Therefore, the executors had no power, right, or title to insist on an action of division or sale of the property.

Court Disposition

Defender assoilzied (absolvitor granted); pursuers' claim dismissed.

Orders

  • Sustains the fourth plea in law for the defender.
  • Repels the first plea in law for the pursuers.