Outer House judge refuses to grant decree to daughter of deceased man ordering adopted sister to repay estate

About this case:

• Citation:
  [2022] CSOH 88
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Brailsford

Lesley Currie, who along with her sister Susan Blair was a main beneficiary of the estate of the late John Currie, argued that her sister, the defender, had intromitted with the estate without obtaining a grant of confirmation. She sought production of the deceased’s will as well as payments to the estate totalling over £142,000 that she alleged were improperly made.

The case was heard by Lord Brailsford. Kinnear, advocate, appeared for the pursuer and R Macleod, advocate, for the defender.

Gifts to show gratitude

On 2 April 2013, following the deterioration of the deceased’s health, the parties were appointed his attorneys under a continuing and welfare Power of Attorney. Only the defender intromitted on the deceased’s assets and property, and she averred that this was only done after November 2013 when the deceased’s health significantly declined. The defender assumed responsibility for his care until July 2014, when he entered a nursing home, at which time she arranged for his house to be sold.

Following Mr Currie’s death, the defender made a number of small payments of negligible value to the pursuer in respect of the estate. The pursuer averred that she became suspicious of the low value of the estate as a result. She obtained statements from the deceased’s two bank accounts, which showed payments totalling £72,835.36 between the date he entered the nursing home and the date of his death and further payments totalling £69,545.85 between the date of death and closure of the accounts.

While she did not dispute that the payments were made directly to her account, the defender averred that the payments were gifts from the deceased made to show his gratitude for the care she provided to him. While she had made the payments herself, they were instructed by him and had been implemented by her because of his ill health.

It was averred by the pursuer that that the defender intromitted with the deceased’s estate without obtaining a grant of confirmation and, as a result, those intromissions were vitiated. In her response, the defender contended that the pursuer had no title to sue and the defender qua attorney had no duty to account for her intromissions to the pursuer qua beneficiary.

No right or interest

In his opinion, Lord Brailsford noted that the defender had produced the will since the commencement of the action. Having addressed that, he observed: “The ratio in Anderson v Wilson (2019) applies to this case. In Anderson the pursuers, as beneficiaries of the deceased’s estate, raised an action against the defender, one of the beneficiary’s husbands and the deceased’s son-in-law, on the basis that he owed a debt to the estate. Inter alia it was averred that he had secured the disposition of land to him by the deceased by means of fraud, facility and circumvention, or undue influence. The commercial judge dismissed the action on the basis that the pursuers had no title to sue.”

Noting that the First Division of the Inner House had upheld that decision, he continued: “The thrust of the pursuer’s claim in the second conclusion to the summons is that the defender qua attorney’s intromissions with the deceased’s assets and property ought to have formed part of the estate. That is on all fours with the circumstances in Anderson. The pursuer qua beneficiary has no right or interest in the composition of the estate. It is for the defender qua executor-nominate to determine. Only where the pursuer can demonstrate such an interest can an action competently be taken or, in other words, will she have title to sue.”

Addressing the pursuer’s argument that Anderson ought to be distinguished, Lord Brailsford said: “I am not convinced that Anderson is distinguishable on the basis that, here, the pursuer seeks an order ordaining the defender qua executor-nominate to seek an account of her intromissions as attorney. I understand this submission to be an attempt to distinguish the instant case from circumstances where the beneficiary seeks an account from the attorney directly. Such a distinction appears to me artificial and to recognise it would be to permit an otherwise incompetent action to succeed through the back door.”

He concluded: “In any event the pursuer is not left without remedy, should she consider that the defender qua executor-nominate has failed to realise assets and hence owes a debt to the estate. The pursuer qua beneficiary, if of the belief that a debt is due to the estate, may bring proceedings in the name of the defender qua executor-nominate against the defender qua attorney.”

Lord Brailsford therefore dismissed the action of the pursuer.