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Scottish executor to be sued 20 years after winding up father's estate

Thursday, 30 August, 2018

The family of Frederick Forbes, who died of an occupational disease in 2014, have been granted leave to sue the executor of his former employer for damages, even though the executor disposed of the employer's estate more than 20 years ago.

Forbes' widow and extended family claim that his death from mesothelioma was caused by exposure to asbestos dust and fibres in the period 1957-1964 while he was employed by a painting and decorating firm run by the late Enos McLean. They seek damages from McLean's son and executor, also called Enos, in his capacity as executor of his late father's estate. In practice, if their claim is upheld, they will seek recompense from the decorating firm's former employers' liability insurers, but the named defendant in the case remains McLean junior, who is now more than 80 years old.

McLean was confirmed as his father's executor in 1994, and told the Scottish Court of Session that he completed administration of the estate in March 1995, at which point his office terminated. He asked for the Forbes family's claims to be dismissed as irrelevant and lacking in specification.

The arguments turned on cases heard in the Court of Session's inner house more than 100 years ago, regarding the liability of discharged testamentary trustees after the failure of the City of Glasgow Bank in 1878.

Giving his opinion, Lord Clark decided that he was bound by these decisions to allow the claimants to pursue their case against McLean, despite doubts about whether the action could bring about any useful outcome even if successful. It is not even clear whether the employer's liability insurance held by the long-defunct painting and decorating firm is an asset of McLean senior's estate.

Clark accepted that executors or trustees may view it as 'an unfortunate burden' if they can be sued in that capacity many years after they consider their roles have terminated. However, he said, the claimants' purpose here was to sue to establish a claim against the estate. 'It may be that a person sued in that context [i.e. McLean] would not see any need to defend the claim', he said. He accordingly declined to dismiss the Forbes' case as unnecessary or futile and gave leave for it to proceed (Forbes v McLean, 2018 CSOH 88).