Heir of man who died in 1999 loses claim for value of items from estate allegedly unaccounted for

Colin Carnegie Smith’s father, Andrew Carnegie, died on 10 February 1999 with no will. The defender, also named Andrew Carnegie, was another child of the deceased and the executor dative to his estate.

The case was heard in Livingstone Sheriff Court by Sheriff Susan Craig.

Items left off the inventory

The deceased had four children with his wife, to whom he was still married at the time of his death, and one with another woman, the pursuer’s mother. The deceased and his wife had previously separated and discharged each other from future claims by a separation agreement. The deceased’s children were each entitled to a one-fifth share of his estate.

The defender instructed his father’s solicitors, Jardine Donaldson, to act on behalf of the executry. The pursuer’s mother corresponded with them through her own solicitors, and alleged that there were items missing from the inventory of the deceased’s assets.

Following the winding up of the estate and the sale of a property that the deceased had let to his mother until her passing in 2002, each beneficiary was entitled to receive £8,525.20 from the sale as well as £9,955.14 from moveable assets. The pursuer’s share was overseen by the Accountant of Court until he turned 16 in 2012.

In 2015, the pursuer began corresponding with the defender, alleging that various items had been left off the inventory of the deceased’s estate. The defender addressed each those claims as best he could by explaining either the disputed items did not exist, had no value or were not matters that were known of by him either at the time of the preparation of the Inventory or thereafter. The pursuer did not accept these explanations.

There was a joint bank account set up in the joint names of the deceased and his wife that was not included in the inventory. In 2019 the defender, who had been previously unaware of its existence, was informed by the bank that it had been amended to be solely in the name of Mrs Carnegie and passed this on to the pursuer. The pursuer contended that this formed part of the estate.

Other items left off the inventory included a number of household items that were in poor condition and unable to be sold were taken to the local dump after the pursuer’s mother had the carpets uplifted. There was also a BMW car in need of extensive repairs, which the defender paid for himself to an amount above the value of the car, and a damaged caravan which was uplifted by the defender’s sister and stored at her property.

The pursuer also contended that the deceased had owned watches, a valuable stamp collection, a pick-up truck, a second caravan, tools and trailer, and a bicycle. The defender repeatedly explained to the pursuer that the deceased did not own any of these. The pursuer sought payment for the value of these items, or £30,000. As the last distribution of funds in relation to the estate took place in 2002, the estate had no remaining assets and the files had been destroyed by the solicitors. Thus, the defender was individually liable.

The pursuer submitted that the defender was in breach of duty as an executor by excluding items of value from the estate. The apparent survivorship destination of the bank account did not remove it from the deceased’s estate, and on the existence of the other items the pursuer’s witnesses should be preferred.

Impossible and unreasonable obligations

In her decision, Sheriff Craig noted the demeanour of the pursuer, saying of the evidence he gave: “I did not form an impression of the pursuer being a person who was merely being diligent. Rather, he was someone who bore animus towards the defender –his half-brother– for reasons that were unclear. It was clear from the evidence that his mother had been similarly enthusiastic in her challenges of the defender from the very outset of executry, and the pursuer appears to have continued with that approach.”

She continued: “All of the pursuer’s evidence about his father’s assets was hearsay. In itself that is not surprising given his age, and of course does not exclude that evidence. It does however raise the issue of what weight it should be given. In that regard, I formed the impression the pursuer’s evidence was so coloured by his animus and distrust of the defender that I could not place any weight on it in matters of conflict.”

On the defender’s conduct as executor dative, she said: “I am satisfied on the evidence that the defender relied entirely on the advice and guidance he received from Jardine Donaldson and, left to his own devices, would not have known what to do as executor. I find all of that unsurprising, and I accept that when he signed the Inventory the defender did so honestly and believing it contained what it ought to contain.”

On the defender’s liability as executor, she said: “There is nothing in [the authorities cited by the pursuer] that suggests there is a liability on an executor dative to obtain a formal valuation of every item owned by a deceased irrespective of whether or not it had any value. Nor is there anything to suggest that an executor dative is not entitled to use his common sense in valuing items or rely on the advice of the executry solicitors about what should, or should not, be included in an Inventory.”

She continued: “The proposition contended for by the pursuer goes too far, imposing as it would impossible and unreasonable obligations on an executor dative that would be onerous, impracticable and quite contrary to the purpose and objective of an executry.”

On the existence of the cars, caravans, and other miscellaneous items, she preferred the evidence of the defender. In particular, the assertion about the second caravan was said to “based entirely on an extremely grainy, poor quality photograph”, and the BMW at the time of the deceased’s death “was a liability to the estate, not an asset”.

In relation to the joint bank account the deceased held with his wife, she said: “It is absurd to suggest that in those circumstances the defender was under any duty to pursue his mother for money twenty years after her husband’s death. Moreover, to suggest, as the pursuer does, that the financial consequences of any failure on the defender’s part should be treated as one for which he, as an individual, should bear responsibility, is equally absurd.”

Whilst she accepted that the account would have formed part of the deceased’s estates on application of the principles, she noted that it would likely have taken time and money to convince the bank that this was the case, saying: “I have no way of knowing what those costs may have been but it is reasonable to infer there would be some charge to the executry that would have had an impact on the net value of the amount credited to the estate. What I do know is that, at the very most, the pursuer has not had the benefit of just over three hundred pounds from his father’s estate. What I am not satisfied about, however, is that that loss results from a breach of duty on the part of the defender, qua executor or personally.”

For these reasons, the pursuer’s claim was dismissed.