Succession: Attorney as executor?

It had long been thought that an attorney appointed under the Adults with Incapacity (Scotland) Act 2000 could not act or seek appointment as an executor on behalf of the adult they represented. However, this belief was largely based on the fact that Currie on Confirmation of Executors emphatically states that it is not possible. The decision of Sheriff Philip Mann in Gordon, Petitioner [2023] SC ABE 26 suggests that it might be.

Thomas Rae died testate but the executors appointed in his will had both predeceased him. The residue of his estate was left to his wife, Eleanor Rae, who would, had she had capacity, have been entitled to seek appointment as executor nominate according to s 3 of the Executors (Scotland) Act 1900. Mrs Rae did not have the requisite capacity to seek appointment herself, so it became necessary to consider who might be appointed and on what basis.

Mrs Rae had granted a power of attorney in favour of Susan Gordon, who decided to seek appointment as executor dative qua attorney. She had originally sought appointment qua representative, but the sheriff considered that appointment qua attorney was the more appropriate approach.

The sheriff, anticipating that the Public Guardian and the Lord Advocate might wish to make representations for their respective interests, granted warrant to have the petition intimated to them; neither entered proceedings. The petition was not opposed so there was no hearing.

Public interest

Faced with what was said in Currie, the sheriff noted that appointment in the capacity sought by Mrs Gordon was not thought to be possible. While Currie quotes unreported authority to the effect that someone cannot seek appointment qua attorney on behalf of an ill but otherwise capax person, there is no authority cited for the proposition that it is impossible to seek appointment in that capacity for someone who is incapax. Reference is made in the paragraph dealing with incapacity to the earlier paragraph citing the unreported authority, but it is not clear that that is because both propositions depend on the same authority. That, however, is the view that the sheriff took.

Sheriff Mann also noted that it was possible for a guardian appointed under the 2000 Act to seek appointment as executor dative qua guardian, and pointed out that guardians and attorneys are both supervised by the Public Guardian and by the court (though in the case of attorneys, that supervision is much less active in nature). That a guardian might be so appointed was not new law, because it had long been recognised that a curator bonis could seek appointment though, again, that relied on various unreported sheriff court decisions. Noting that it was in the public interest that people’s estates should be administered efficiently, the sheriff’s view was that requiring the appointment of a guardian to act as executor dative where an attorney was already appointed was not in the public interest.

Having come to the view that it was possible or, at least, not precluded as Currie might suggest, the sheriff granted the petition and appointed Mrs Gordon as executor dative qua attorney.

Attorney’s powers

That a sheriff has now held that such an appointment is competent begs the question whether a particular attorney is empowered to seek appointment and then to act if appointed. The sheriff relied on another passage in Currie to the effect that if a person is empowered to raise judicial proceedings – a power that is found in most powers of attorney and which is worded in a fairly standard way – that power will be sufficient to allow the attorney to raise the necessary petition. Currie notes that it would be preferable that the power included a reference to commissary business, but that the more general power would suffice.

The question of whether an attorney has the powers required to act once appointed was not addressed by the sheriff. It might depend on whether it is correct to take the view that a power of attorney is strictly construed and so an attorney may only do what they are expressly empowered to do, or whether one can rely on the general power that almost all powers of attorney contain allowing the attorney to do anything the adult might themselves have done. There might be some support for the latter view in Lord Sandison’s judgment in Johnstone v Johnstone [2023] CSOH 30, discussed in the briefing at Journal, June 2023, 31; however practitioners may decide to update their styles to include explicit powers allowing an attorney to act as an executor should the need arise and should the decision made here prove to be enduring.