Book reviews: June 2023

R A S MacLeod

PUBLISHER: W GREEN
ISBN: 978-0414030947
PRICE: £85

The nuances of the law in the areas of executry administration and of wills and succession in a litigation context are many. Those dealing with contentious cases in these fields require a proper understanding of the underlying law and practice, while ensuring that the nuances of litigating cases in these areas are considered when advising clients, drafting proceedings, and conducting the advocacy.   

Roddy MacLeod has produced a comprehensive and concise textbook, which is easy to navigate. He has, in this book, with a detailed table of contents and consisting of seven chapters, provided a “one-stop shop” for litigators and private client lawyers alike, when advising clients in executry litigation situations. 

Key cases, some very recent, are referenced at the start of each chapter, allowing the reader to easily identify the leading authorities to consider prior to embarking on litigation. 

The book’s chapters follow a logical sequence, with the first dealing with the general principles in executry administration and litigation, such as issues of title to sue, interests of parties, and the timing of litigation. The roles of executor and beneficiary, together with their respective rights and duties are explained in detail, with context being given by reference to case law and to practical examples. Commentary is provided as to these and other matters arising, in both testate and intestate estates, together with a detailed exploration of situations where there might be, for example, competing titles or interests, and of which remedies might be available in these conflict situations. 

Subsequent chapters deal with issues surrounding the interpretation of wills and their effect, revocation of wills, formal validity of wills, and relevant remedies in disputes arising. The application and effect of the Requirements of Writing (Scotland) Act 1995 are explored, with a clear explanation being provided by the author as to what is required for there to be a valid, “self-proving” will, in addition to his setting out what is required, and the procedure to be followed, where a will requires to be set up. 

These chapters will be of great assistance to practitioners requiring to identify whether some preliminary action might be required in a particular case. 

The remedies of reduction (for example, in cases where challenges are raised as to the capacity of the testator, or allegations of undue influence or facility and circumvention are made), proving the tenor (in cases where the original will has been lost, destroyed or misplaced), and rectification (for example, where handwritten notes have been made on a typed will), together with the relevant procedures for pursuing (or defending) actions relevant to these remedies, are explained clearly and concisely by MacLeod, who provides a comprehensive analysis of the law .  

In the same way he guides practitioners on how to deal with disputes pertinent to disgruntled beneficiaries. He also provides informative commentary to court actions such as count, reckoning and payment (for example where a beneficiary wishes an account of intromissions with the estate from the executor), removal of executors (for example, where it is believed executors are not properly discharging their duties), and appointment of judicial factors (for example, where there is deadlock between the executors).

The text covers all conceivable disputes that might arise in the field, with MacLeod setting out the legal position, practice, and procedure relative to cases including legal rights claims, “section 29” claims, contractual claims, delictual claims, claims by the executor to recover estate, and actions of multiplepoinding. 

The last chapter deals with expenses and interest, issues which are of utmost importance to parties to an action. The approach taken by the courts to such matters in executry litigation is set out clearly and allows practitioners to focus on such issues from the outset, to advise clients as to the potential implications relative to expenses depending on the type of case involved, and on the capacity in which they are a party to the action. 

MacLeod’s experience in dealing with executry litigation is evident from the detail in this book, and the fluency with which he writes.

Disputes in this field, while not uncommonly litigated, might be infrequently dealt with by a general dispute resolution practitioner, and MacLeod’s guidance on how to approach such cases practically is invaluable. The book is not a weighty tome written by an academic, but an easy read by an advocate with years of experience in the field, which further adds to its appeal. It is of an ideal length and written in a style which captures the reader’s attention. 

Parties in executry litigation disputes are very often closely related, resulting in disputes commonly being emotionally charged. It often seems that “where there’s a will, there’s a war”. This book, with all its strengths, is likely to become a leading authority, and will go a long way to assisting practitioners in finding such “wars” easier to deal with. 

Stephanie Carr, partner, dispute resolution, Thorntons