No discretion to waive executry caution requirement, sheriff rules
The court does not have power to waive the requirement for an executor to obtain caution for an estate above the small estates limit, a sheriff has ruled.
Sheriff John McCormick at Glasgow gave his decision in an application by Charles Garnett, who sought to be confirmed as executor dative on the estate of his late father. The estate was valued at £55,375, with total liabilities of £22,778. The only beneficiaries were the applicant and his sister.
Mr Garnett had written to the court asking the sheriff "to exercise his/her discretion to confirm myself... without having a 'Bond of Caution'", urging the court to be mindful of the Scottish Government’s intention to abolish the need for a bond of caution and to take into account the above figures, the likelihood that the estate would be properly administered, and the unlikelihood of creditors and beneficiaries of the estate requiring to be indemnified against loss caused by his acts.
Sheriff McCormick observed that the cautioners still in the market would insist that a solicitor was involved in the administration of an estate irrespective of its value, and that the expense of solicitors and caution would deplete what was a relatively small estate. Although the net estate was less than the £36,000 small estate limit below which caution was not required for estates prepared by the sheriff clerk, it was the value of the whole estate that determined whether the estate was a small one.
Despite Mr Garnett's belief, based on certain website information, that the court had a discretion, the sheriff said it had been accepted since an unreported 1874 decision referred to in Currie on Confirmation that the court had no discretion to waive caution. While the Succession (Scotland) Act 2016, s 19(2) gave ministers power to prescribe cases where confirmation would not be required, or to end the requirement to find caution, it conferred no power of waiver on the court. Further, while the court could reduce the amount for which caution was sought, it could not reduce it to nil.
The sheriff added that there was an anomaly regarding small estates, in that "where an executor dative decides to instruct a solicitor to wind up a small estate, caution is necessary (over and above the protections and professionalism of a solicitor) when, for the same estate, caution is not required where the executor dative seeks the assistance of the sheriff clerk at public expense".
He concluded: "I am advised that oral requests to waive caution are routinely made to my commissary clerk at the counter by executors dative such as Mr Garnett under the impression (from websites or elsewhere) that the court has discretion. The court has no discretion – hence this short note."