Man who secretly removed bank book from dead father’s home fails to have brother removed as executor of estate 

Grame Campbell, one of two sons of the late James Campbell, submitted the petition against James and Margaret Campbell based on alleged financial irregularities. The respondents were appointed as the deceased’s executors under the terms of a will dated 18 January 2008. 

The petition was heard by Lady Poole. 

Clandestinely removed a bank book 

The respondents were granted continuing power of attorney over the deceased at the same time as the will was signed. The deceased suffered from severe kidney disease and required assistance in order to continue living at home. The respondents arranged for him to have carers and managed his affairs, as well as taking him on holiday and to their home in England on several occasions. The deceased remained of sound mind throughout his life. 

The petitioner, who resided in the Netherlands, was significantly less involved in his father’s care than the respondents. He was not aware of the detail of the assistance they provided or the full extent of the considerable arrangements they made to ensure he could continue to live at home until his death. 

In August 2010, the respondents became signatories to a bank account held by the deceased with Airdrie Savings Bank (ASB). With the agreement of the deceased, they would use this account to reimburse themselves for expenditure made on his behalf. Following Mr Campbell’s death in June 2015, the petitioner flew back to Scotland to attend his funeral, staying in the deceased’s house to do so. When he left, he clandestinely removed the bank book for the ASB account without telling the respondents. 

The respondents managed the deceased’s estate without consulting a solicitor. The terms of the deceased’s will did not allow them to charge for their time. By oversight, the inventory of the estate did not include two bank accounts with ASB, including the one the petitioner had taken the book for.  

Following a Sheriff Court action and correspondence between solicitors, a dispute arose concerning the date of death balances of the two ASB accounts, listed as £21.94 and £830.44, respectively. This was queried by the petitioner based on the sums contained within the first account in 2013 as shown by the bank book. 

It was submitted for the petitioner that the respondents were unfit to manage the estate due to their conduct, specifically in taking money out of the first ASB account before and after the death of the deceased, not listing the ASB accounts and their balances in the inventory, and failures in accounting to beneficiaries of the estate. 

Not a practical impossibility 

In her opinion, Lady Poole said of the petitioner, who gave evidence solely by affidavit: “I have found that the petitioner clandestinely took a bank book from his deceased father’s house. He displayed a lack of openness and honesty in so doing, and in failing to disclose that he possessed the bank book until late 2018. His actions are indicative of a lack of candour and adversely affect his credibility. In the circumstances I give little weight to aspects of the affidavit which are not confirmed by other evidence.” 

Regarding the management of the estate, she said: “The test for removal has not been met. There has been no malversation of office, or persistent and wilful neglect by the executors. In this case, the executors have acted to obtain confirmation, ingather and sell assets, settle debts, and make payments to beneficiaries. The completion of the executry is not a practical impossibility, nor is there administrative deadlock, and nor in my opinion is there an impermissible conflict of interest if the executors continue.” 

She continued: “Although it is a matter for the respondents whether to instruct solicitors to assist them, with the benefit of hindsight it might be thought that failing to instruct solicitors so far has been a false economy. Reasonable professional fees incurred in connection with an executry are ordinarily treated as executry expenses.” 

Addressing the petitioner’s specific criticisms of the respondents, she said: “There are procedures for correcting oversights in inventories for confirmation which should be followed. It will also be necessary for the executors to obtain transaction records for the second ASB account from the judicial factor in order to ascertain the closing balance which forms part of the estate, given the conflict of evidence on this matter. The respondents expressed to the court a willingness to take steps to ascertain these balances, and act upon the information received in accordance with the terms of the will.” 

She continued: “The deceased was of sound mind throughout his life and capable of directing his financial affairs. As a generality, what the deceased chose to do with his assets during his lifetime was a matter for him. There was no obligation incumbent on him to retain his assets so they could be distributed on his death for the benefit of the petitioner.” 

Lady Poole concluded: “In the words of Birnie v Christie (1891), it has not been proved that the executors are unable to reconcile their personal interests and duties as executors. On the facts of this case at present I do not consider sufficient grounds exist to establish a conflict of interest which could justify removal of the respondents as executors.” 

For these reasons, the petition was refused.