Outer House judge resolves dispute between feuding Italian brothers appointed joint executors of mother’s estate



Lady Poole
Lady Poole

An Italian man whose deceased mother was domiciled in Scotland has successfully petitioned the Court of Session for the removal of his brother as an executor of her estate after he began living in her property without consent.

The deceased, Ann Sherrede Ciarrocca, had lived in Edinburgh since 2012 following her amicable legal separation from the brothers’ father. The petitioner, Paolo Ciarrocca, and the respondent, Andrea Ciarrocca, also had residences in the Edinburgh area.

The petition was heard by Lady Poole in the Outer House. Both parties represented themselves during proceedings, although the respondent made written submissions only and did not appear in court.

Moved into deceased’s property

Prior to moving to Edinburgh, the deceased had lived in a flat in London. In order to put the deceased in funds to buy her Edinburgh property, her other son Marco, who lived in Berlin, bought a half share of the London property for 50% of its value. The flat was retained and subsequently let out to tenants through a letting agent.

In 2015, the deceased became ill with cancer, which ultimately caused her death. She appointed the parties as her executors in a will dated 22 June 2017 and directed that the residue of her estate be divided equally between her three sons following the settlement of lawful debts and funeral expenses.

A firm of solicitors, Campbell Smith LLP, was jointly instructed by the parties to act in the executry. In July 2019 they withdrew from acting as the respondent had told them they were not authorised to act on his behalf. Following the settlement of debts, the only assets remaining in the estate were the Edinburgh property and its contents as well as the remaining half share of the London property retained by the deceased.

Following the deceased’s death, the three brothers agreed that the third brother should take the remaining half share of the London property and make a balancing payment to the estate for the amount its value exceeded his share of the residue. This agreement did not work out for various reasons, and relationships began to deteriorate.

In September 2018, the petitioner discovered that the respondent had been staying in the Edinburgh property rather than his own flat, which he had rented out. He had changed the locks and not given either of the other brothers a key. The respondent did not move out of the property until after the petition for removal was brought against him, during which time he paid no rent to the estate, changed the utility bills for the property into his own name, and refused to allow the others to meet him at the property to fairly divide its contents, which were of sentimental value to all three of them.

Both the petitioner and the third brother gave evidence in the form of witness statements and oral evidence. No legal authorities were cited by either the petitioner or the respondent. Lady Poole therefore decided the case on the merits of the petition, applying the governing law as it stood.

Clear conflict of interest

In her opinion, Lady Poole said of the evidence of the petitioner and the third brother: “In general, having heard PC and MC and considered the totality of the evidence, I found both to be credible and reliable witnesses, although at times intemperate to the court. They had also been intemperate in some of the correspondence sent during the executry. Some of this correspondence referred to AC in unflattering terms. Nevertheless, the fact this correspondence had been written and sent did not adversely affect my overall assessment of the credibility and reliability of PC and MC on matters relevant to the determination of the petition.”

Noting that the intervention of the court was “clearly warranted” given the animosity between the parties, she went on to say: “Cases such as Gilchrist’s Trustees v Dick (1883) and MacGilchrist’s Trs v MacGilchrist (1930) make it clear that executors will not be removed lightly, and there needs to be more than mere irregularity or illegality. Nevertheless in my opinion AC’s actions over the course of the executry amount to malversation of office, and the legal test for removal of an executor is met.”

Of the specific parts of his behaviour which led her to this decision, Lady Poole explained: “AC personally benefited from use of estate assets to the detriment of beneficiaries. He lived in the Edinburgh property without paying rent, enabling him to rent out his own residence for personal financial gain. That was a clear conflict of interest. I accept AC may have paid some bills for upkeep on the Edinburgh property during that time, which might be charges on the estate to be paid before distributing residue, but that did not entitle AC to use an estate asset in this way.”

She continued: “For most of the period of the administration of the estate AC has behaved erratically. He has changed his mind frequently about proposals for division, has refused to deal with the original estate solicitors and has not co-operated with appointment of replacement estate solicitors, has at times refused to communicate with his co-executor or other beneficiaries, has made unsubstantiated claims about property not confirmed to, has claimed that property worth more than one third of the residue of the estate is his, and unilaterally put the Edinburgh property on the market without the selling agents being properly informed about the other executor.”

Lady Poole concluded: “AC’s behaviour has resulted in deadlock in administering the estate, and while he remains in post, in my opinion it will not be possible for the estate to be divided as set out in the deceased’s will. AC’s actions viewed as a whole amount to malversation of office and I therefore remove him as executor.”

As a result of Lady Poole’s decision, the petitioner was to continue as sole executor of the estate, with expenses awarded against the respondent. The terms of the deceased’s will were otherwise unaffected.

© Scottish Legal News Ltd 2021



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