Scottish widow's attorney granted power to administer late husband's estate

Monday, 11 September 2023
The attorney of a mentally incapacitated widow has won her petition to be appointed executrix-dative of the estate of the widow's deceased husband, despite the lack of legal precedent granting her that right.

Thomas Rae (the deceased) left a will naming his wife Eleanor Rae as his sole beneficiary. However, the two executors appointed by the will had both predeceased him. Normally, this would have entitled Rae to act as executrix either in a nominate capacity by virtue of s.3 of the Executors (Scotland) Act 1900, or in a dative capacity as relict of the deceased. However, by the time of his death Rae had lost mental capacity and had granted power of attorney (POA) to Susan Gordon.

Gordon duly applied to be appointed as the deceased's executrix as the representative of Rae. Initially, this application was rejected by Sheriff Philip Mann as inappropriate, as a representative appointment is normally reserved for the confirmed executor of a deceased person who, if alive, would be entitled to the office of executor-dative, which was not the situation here. Instead, the question was whether or not Gordon was entitled to be appointed as executrix-dative as Rae's attorney, and the petition was amended in appropriate terms.

There appears to be no definitive precedent on the matter, but Sheriff Mann relied on selected passages from the leading authority on Scottish executor appointments, namely Currie on Confirmation of Executors, now in its ninth edition. Currie suggests that the courts can only appoint a guardian or the holder of an intervention order, and not an attorney, as executor-dative in place of an incapacitated person.

However, Mann considered that the public interest in the least possible delay and expense in estate administration did not justify appointing a guardian as a precursor to the appointment of an executor-dative. Anyway, he said, in many if not most cases the person who might be appointed attorney might also be the person who would be appointed guardian or intervener.

As a precaution, Mann submitted this view to both the Office of the Public Guardian and the Lord Advocate before giving his judgment. Both declined the opportunity to enter process and make representations, and accordingly Mann ruled that Gordon was entitled to the same powers to act on the donor's behalf as a guardian would. He duly appointed her as the deceased executrix (Petition by Susan Gordon, 2023 SC ABE 26).



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