Incapax widow’s attorney can petition to be executor
The attorney of a woman now incapax has been granted a petition to be appointed executrix dative of the woman’s late husband, under whose will the woman was sole beneficiary.
Sheriff Philip Mann at Aberdeen Sheriff Court granted the petition by Susan Gordon despite a statement in Currie on Confirmation of Executors (9th ed) that an attorney cannot obtain confirmation on behalf of a UK resident incapax.
The petitioner was attorney of Mrs Eleanor Rae, the sole beneficiary under the will of her late husband Thomas Rae. The two executors under the will both predeceased the husband. The widow would be entitled to appointment either under s 3 of the Executors (Scotland) Act 1900 or as widow.
Sheriff Mann granted warrant to intimate the petition to the Public Guardian and the Lord Advocate for their interest, but neither entered the process. In considering the petition he noted that: “There is a consistent theme running through Currie that it is not competent for the court to appoint an attorney to the office of executor-dative in place of an incapax whereas it is competent to appoint a guardian or the holder of an intervention order in respect of such a person to that office.”
As authority Currie refers to an unreported sheriff court case, Leishman (1980). Sheriff Mann did not have access to the judgment, but suggested that it appeared to refer to a possible executor who was unfit but capax, adding: “I am inclined to disagree with Currie on this matter so far as it concerns an incapax. I take no exception to the proposition that it is incompetent to appoint an attorney in place of a UK resident who is capax.”
He continued: “I can see no reason in principle why it should not be equally as competent to appoint an attorney as to appoint a guardian or the holder of an intervention order to the office of executor dative qua such in these circumstances… All are… subject to supervisory powers of the Public Guardian and the court. All would require to find caution…
“It seems to me that there is a compelling public interest to ensure that the estates of deceased persons should be administered with the least possible delay and with the least possible expense. In a case where there is an attorney in place for an incapax individual with the right to be appointed executor, to insist that a guardian be appointed as a precursor to the appointment of an executor-dative does not satisfy that public interest.”
The power of attorney contained a power to raise or defend any actions in which the grantor was interested if the attorney considered it necessary or expedient, which Currie accepted would be sufficient for a petition by a guardian. Sheriff Mann saw no reason why that should not apply equally to an attorney.
However before granting the petition he required it to be amended to seek appointment qua attorney rather than qua representative, a term which he considered was “normally reserved for the confirmed executor of a deceased person who, if alive, would be entitled to the office of executor dative”.