In a recent landmark case, the attorney of a mentally incapacitated widow won her petition to Aberdeen Sheriff Court to be appointed as executrix-dative of the widow's deceased husband. This case significantly changes the current legal position where an executor is unable to act due to incapacity.

Appointment of Executor

When preparing a will in Scotland, it is very important to consider who you appoint executors. The role of an executor is to administer a deceased's estate – this will include investigating, administering, ingathering and distributing the estate in accordance with the testator's will, or the succession laws of Scotland where there is no will.

Where a person dies without a will (known as dying "intestate"), or in circumstances where the executor named in the will cannot act (either because they pre-deceased the testator, lack the mental capacity to act as an executor or have declined to do so), an 'executor-dative' can be appointed by the court. This is in contrast to an executor appointed by a will (an 'executor-nominate') who can be anyone of the testator's choosing. It is only those who inherit the deceased's estate under the Scottish intestate laws who can be appointed as executor-dative.

Background to the present case

In the case in question, the deceased (Thomas Rae) left a will appointing his spouse (Eleanor Rae) as the sole beneficiary of his estate. His will also appointed two executors, but both of the executors appointed pre-deceased Mr Rae.

As the law currently stands, Mrs Rae is able to apply to the Court to be appointed executrix-dative of her late husband's estate, in her capacity as the sole beneficiary of his estate. However, at the time of her husband's death, she had lost mental capacity and was unable to act as executrix-dative. Susan Gordon was acting as Mrs Rae's power of attorney.

There is clear legal authority on the appointment of executors in Scotland in the form of Currie on Confirmation of Executors (the leading textbook in this area) that clarifies beyond doubt that an executor cannot delegate their duties to an attorney. On this basis, it has, until now, been generally accepted by legal practitioners that an attorney could not step into the shoes of an executor and apply to be appointed as an executor. However, this point had never been tested in court until now.

The Sheriff's decision

In this case, Mrs Rae's attorney, Susan Gordon, petitioned the court to be appointed as executrix-dative in her capacity as the Mrs Rae's attorney.

Sheriff Mann allowed the appointment of Susan Gordon as executrix-dative. Sheriff Mann highlighted that Currie suggests that a Court can appoint a legal guardian or the holder of an intervention order as executrix-dative in place of the incapacitated person so it is therefore reasonable to conclude that an attorney acting on behalf of an incapax individual must also be capable of being appointed. A legal guardian in Scotland is someone appointed by the court by way of a Financial and/or Welfare Guardianship Order to allow them to make ongoing decisions on behalf of an adult with incapacity.

Here, Susan Gordon was already appointed as Mrs Rae's attorney meaning that an application for a guardianship order or intervention order was not required for any other reason, as Susan was already making ongoing decisions regarding her mother's affairs. However, Sheriff Mann considered that when dealing with a deceased person's estate, it is within the public interest to do so as efficiently and cost effectively as possible. He also pointed out that the person entitled to be appointed as guardian by the Court, would often be the same person who was already appointed as attorney.

He therefore concluded that it would not be in the public interest to insist on a guardian being appointed here when an attorney was already acting as this would delay the administration of Mr Rae's estate and increase the administration costs considerably.

On this basis, Sheriff Mann ruled that Susan Gordon (as attorney) was entitled to be appointed as executrix-dative in her capacity as Mrs Rae's attorney.

Whilst this judgment was unexpected, the pragmatic approach adopted by Sheriff Mann is likely to be welcomed by practitioners.

How can we help?

This case also emphasises the importance of having a valid power of attorney in place (and of course, making sure that your will and power of attorney are up-to-date and reflect your current wishes)! If you or your loved ones would like to review your current documents or discuss putting a power of attorney in place, please get in touch with your usual Brodies contact.

Source: 2023_SC_ABE_26.pdf (


Victoria Zeybek

Senior Solicitor