Selkirk sheriff grants attorneys of incapax executor nominate the power to replace her as executors to late husband’s estate

About this case:

• Citation:
  [2024] SC SEL 8
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff P Paterson

The will of the late Robert Thompson appointed his wife Jean as executor nominate. Mrs Thompson granted a POA to petitioners Joy and Andrew Cornforth whilst she still had capacity, but later became incapax.

The case was heard by Sheriff Peter Paterson at Selkirk Sheriff Court. MacLeod, advocate, appeared for both petitioners.

Expressly allowed substitutes

It was accepted by the court that the loss of capacity would preclude Mrs Thompson from seeking confirmation as executor nominate, citing the latest edition of Currie on Confirmation of Executors. However, while Currie allowed for the possibility of an executor appointing an agent to act in their name, it appeared to exclude the delegation of the legal duties and obligations of an executor to a third party.

The sheriff therefore invited submissions on how an adult granting a POA could give their attorney a power that they themselves did not possess. Five arguments were advanced in favour of this proposition by the petitioners, four of which were general and one specific to the facts of the case.

It was submitted that as the incapax had not expended confirmation, there was no delegation of trust by her qua trustee, nor could the POA amount to such a delegation. The petitioners’ duties as attorneys required them to act, given that the incapax was the universal legatee of her late husband.

Additionally, it was submitted that the will of the deceased had also expressly allowed for the appointment of substitute executors. The POA in turn reflected the wishes of the incapax and as such should be reflected.

No delectus persona

In his decision, Sheriff Paterson observed generally: “I should make it clear that I agree with one of Sheriff Mann’s observations in Gordon, Petitioner (2023), namely the law should not place artificial barriers in the way of the winding up of a deceased’s estate. The significance of this observation is that if the attorney cannot be appointed then the only alternative would be to seek appointment as guardian, with the concomitant delay and expense.”
He continued: “That said, no matter the utility of allowing the appointment, the court cannot do something which offends against basic principles, namely the prohibition of delegation.”

Dealing with the general arguments advanced by the petitioners, the sheriff said: “The Inner House in the case of Crawford’s Executors, Petitioners (2023) has recently made it clear that ‘without confirmation, the petitioners have no status different from any other individual’. While that is undoubtedly true it does not circumvent the problem. If the powers cannot be delegated after confirmation I can see no a priori reason why the position should be any different prior to confirmation. There is still the same element of delectus personae involved.”

He went on to add: “The final general argument advanced is that, to refuse the petition would mean a guardianship application and to force this would offend against section 1 of the Adults with Incapacity Act 2000, namely that an intervention under the Act should be the least restrictive option. It would offend against it because it is said there is the option of the granting the petition. With respect, this amounts to putting the cart before the horse. If the petition is incompetent, then the intervention order under the Act may be the least restrictive option.”

However, on the argument based on the terms of the deceased’s will, Sheriff Paterson concluded: “In terms of the Will he allows for the appointment of substitute executors. In my opinion this suggests that the intention of the late Mr Thompson was that there was no delectus persona attached to the nomination of his wife, the incapax, and as such there is no bar to the delegation of duties.”

The sheriff therefore granted the petition based solely on the particular terms of the will.