Inner House recalls interlocutor for proof in dispute between two brothers over intestate father’s estate

About this case:

• Citation:
  [2024] CSIH 25
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Tyre

Saddiq Ahmed originally raised the action against his brother Kamall Ahmed seeking reduction of the confirmation and interdict against the defender taking any step in reliance upon the grant of confirmation, including selling a number of properties listed in the inventory. Both parties had been appointed executors dative of their father’s estate in 1998, but a dispute arose when the defender attempted to confirm the appointment without his brother’s knowledge 25 years later.

The appeal was heard by Lord Pentland, Lord Tyre, and Lady Wise. Motion, solicitor advocate, appeared for the pursuer and respondent, while the defender and reclaimer appeared as a party litigant.

Unsuitable to act

On 1 July 1996 the parties’ father, Bashir Ahmed, died intestate, survived by nine children. Following contested proceedings, the parties were appointed the deceased’s executors dative in July 1998, but no application for confirmation was made at this time. At the date of his death the deceased owned various heritable properties in which Habib Bank was a heritable creditor, and it was accepted that the bank had disponed of these properties many years ago to members of the deceased’s family, to whom it had offered them on a first refusal basis.

Many years later, on 5 April 2023, the defender applied to Wick Sheriff Court for confirmation of himself and the pursuer as co-executors, without informing the pursuer of his intentions. In the inventory of assets, the defender listed a number of heritable subjects as forming part of the deceased’s estate at death, including properties repossessed before or shortly after his death.

It was contended by the pursuer that the application contained material errors in that it was not correct to state that he was about to enter into management of the estate and the inventory included properties that did not belong to the deceased. Moreover, had he known of the defender’s intention to apply for confirmation, he would have resisted it on the ground that the defender was unsuitable to act as executor.

Having heard parties, the lord ordinary fixed an eight-day proof before answer and granted interim suspension and interdict. She additionally refused the defender’s motion to appoint an enrolled solicitor without a practising certificate, Deryck de Maine Beaumont, as a lay representative, on the basis that he was an enrolled solicitor and was likely to be called as a witness due to his connections with the family.

In his Note of Appeal, the defender submitted that the lord ordinary had erred in her interpretation of the eligibility requirements for lay representatives, and in accepting the pursuer’s submission that Mr de Maine Beaumont’s actings for other members of the family made him unsuitable for appointment. He further submitted that he ought to have been afforded more time to find another lay representative, and that the lord ordinary had erred in allowing the proof.

Not treated less favourably

Lord Tyre, delivering the opinion of the court, said of the rules on lay representation: “There is in our view no warrant for reading into the definition of a solicitor for the purposes of the Legal Services (Scotland) Act 2010 - and hence Rule of Court 12B - an additional requirement that the solicitor hold a current practising certificate. Mr de Maine Beaumont is an enrolled solicitor; this was confirmed at the hearing before us. He is therefore excluded by the terms of the legislation from appointment as a lay representative.”

On whether the defender should have given more time to find a new representative, he added: “The defender was aware that he was not entitled to lay representation as of right. He was or ought to have been aware that his application might be refused and that the hearing would nevertheless proceed. He was not treated less favourably in this regard than a professional representative. In any event, he did not move for an adjournment, and the Lord Ordinary cannot be faulted for not taking it upon herself to suggest that he do so.”

Analysing whether the lord ordinary ought to have allowed a proof, Lord Tyre noted: “In the present case the defender has stated preliminary pleas including a plea to the relevancy of the pursuer’s case. These include a challenge to the relevancy of the pursuer’s case for reduction and suspension of the confirmation. The defender wishes to argue that the confirmation was not vitiated either by having been applied for without the consent of his co-executor or by errors in the statement or valuation of the assets in the estate. These are matters of law.”

He concluded: “[The defender] also seeks to argue that much of the case pled by the pursuer is irrelevant to the remedies sought in the conclusions. Whatever may be said about some of the other issues raised in the defender’s note, the Lord Ordinary erred in refusing to allow the defender a debate on the procedure roll in order to present his arguments on relevancy. Were those arguments to be successful, the scope of any subsequent proof could be much reduced.”

The reclaiming motion was therefore allowed to the extent of recalling the interlocutor allowing proof before answer and appointed the cause to the procedure roll for one day of oral argument.