Trustees can seek directions on questions of pure fact
A petition which raises a question of pure fact may competently be presented by trustees in an application to the Court of Session for directions, and may in appropriate cases be presented by an executor dative, the Inner House has held.
The court made the rulings in considering petitions for directions by the executor dative of Mrs Elizabeth Agnes Don, or Tomala or Williams or Grosvenor (“Elizabeth”), who died in November 2016 aged 91, and the trustees of a trust in which she held a liferent interest, in relation to the distribution of her estate and the trust fund respectively. In each case the court was asked to decide whether a man named Marc Lawrence, who died in 2020, was the same person as a man named Joseph Grosvenor who married Elizabeth in 1991.
Elizabeth’s first husband, Jan Tomala, died in 1982; she and her second, William Williams, divorced in 1991; she then married Mr Grosvenor. They separated about 1993 but there was no evidence that they divorced. By 2010 Elizabeth was suffering from dementia.
Mr Grosvenor was born in 1934; his birth certificate gave the name Sidney Collins. He used at least four other names during his life. His last contact with the trust was in 2003. Investigations after Elizabeth’s death found that a man named Marc Lawrence, who had the same date of birth as Sidney Collins, had been living alone at an address in James Street, Peterhead, similar to that which appeared in correspondence with the trust, except that the street name then used was Jane Street, which does not exist. Mr Lawrence was traced to a care home in Liverpool. He was suffering from dementia. There was some photographic evidence suggesting a resemblance between Mr Grosvenor and Mr Lawrence.
A surviving spouse of Elizabeth would be entitled to prior and legal rights in her estate (which would be substantial) and to alimentary provision from the trust. The questions for the court sought an answer to whether the executor and trustees should proceed on the basis that Marc Lawrence was the person Elizabeth married in 1991 and was still married to her at her death.
Addressing the question of competency, the court, in an opinion delivered by Lord Tyre who sat with Lord Malcolm and Lord Doherty, said the Court of Session had initially take a cautious approach to its power to give directions. Previous cases had not expressly considered the issue of entertaining a question of fact, but the present court was satisfied that an application for directions was not excluded from the procedure merely because the question was one of fact.
While it might be that some cases were so complex that only a procedure such as an ordinary action could appropriately address them, the rules applicable to a petition for directions provided for factual inquiry by a variety of methods, and “So long as all parties with an interest have an opportunity to participate in the process, including any form of inquiry that the Court may order, we see no reason why the current procedure should not be used to determine straightforward issues of fact”.
Lord Tyre observed that it was regrettable that the petition had not been served on the Lord Advocate for the Crown’s possible interest as ultimus haeres, but in light of the court’s answers it was not necessary to onvite representations.
Further, an executor dative was given the same powers as a trustee by s 20 of the Succession (Scotland) Act 1964 and the present case was a good example of an executor dative facing the same questions as might be faced by trustees. Both petitions were therefore competent.
The court went on to conclude that the evidence before the court “amounts to a compelling case that Marc Lawrence was indeed Mr Grosvenor”, even though nothing had been heard from him since 2003.