CHALMERS v MACHIN [2017] ScotSC 29 (09 May 2017)

CHALMERS v MACHIN [2017] ScotSC 29 (09 May 2017)

The defender, as heir of provision under the special destination, is personally liable to the trustee for the deceased’s debts subsisting at the date of death, to the extent of the value of the inherited one-half share, regardless of whether the share formed part of the sequestrated estate. The defender’s averments denying such liability are irrelevant and excluded from probation. The extent of the deceased’s debts at death remains a factual issue for proof.

Citation
[2017] ScotSC 29
Parties
Pursuer: Gordon Chalmers as trustee of the sequestrated estate of the late Colin Machin; Defender: Maria Jennifer Machin
Jurisdiction
Scotland
Judgment Date
09 May 2017
Procedural Posture
Civil / Interlocutory Judgment on Relevancy and Exclusion From Probation; Proof Allowed on Remaining Factual Issues
Outcome
Defender’s preliminary pleas repelled; pursuer’s plea sustained in part; proof allowed on remaining issues; expenses reserved.
Legal Topics
Special Destination, Heir of Provision, Liability for Deceased's Debts, Sequestration, Creditors' Rights, Prescription of Debts
Succession Law Property Law Insolvency Law Special Destination Heir of Provision Liability for Deceased's Debts Sequestration Creditors' Rights +1 more

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Parties

Gordon Chalmers as trustee of the sequestrated estate of the late Colin Machin

Pursuer

Maria Jennifer Machin

Defender

Procedural Posture

Civil / Interlocutory Judgment on Relevancy and Exclusion From Probation; Proof Allowed on Remaining Factual Issues

Legal Issues

  1. 1 Whether the defender, as heir of provision under a special destination, is personally liable for the deceased's debts to the extent of the value of the inherited share
  2. 2 Whether the deceased's one-half pro indiviso share formed part of his estate at death or at sequestration
  3. 3 Whether any debts transferred to the defender upon acquisition of the deceased's share

Ratio Decidendi

The defender, as heir of provision under the special destination, is personally liable to the trustee for the deceased’s debts subsisting at the date of death, to the extent of the value of the inherited one-half share, regardless of whether the share formed part of the sequestrated estate. The defender’s averments denying such liability are irrelevant and excluded from probation. The extent of the deceased’s debts at death remains a factual issue for proof.

Court Disposition

Defender’s preliminary pleas repelled; pursuer’s plea sustained in part; proof allowed on remaining issues; expenses reserved.

Orders

  • Repels defender’s pleas-in-law numbers 5, 6 and 7
  • Sustains in part pursuer’s plea-in-law number 3 to exclude specified averments from probation