When can an Executor raise court action on behalf of an estate?

At what stage in an executry does an executor have authority to raise court action on behalf of the deceased's estate? This was discussed recently in the Sheriff Court case of Riddell v Arcus Solutions (Holdings) Ltd. The answer comes down to whether or not the executor has been formally appointed, either by the deceased in a will or by the Court after the deceased's death.

The relevant background is quite straightforward. Mrs Riddell died in July 2018. In February 2018 she had an unrelated accident at work. Mrs Riddell didn't have a will. She, therefore, didn't appoint any executors herself. Because of this, anybody who was entitled to be appointed as executor would have to apply to the court to be appointed Executor Dative.

Title to sue

Mrs Riddell's husband raised court action against her employers in February 2021. The court papers that Mr Riddell issued stated that he raised the action as Executor Dative. There was little argument that Mr Riddell would be entitled to be appointed Executor Dative. However, it became apparent during the course of the case that Mr Riddell had neither been appointed Executor Dative by the court nor had obtained Confirmation to his wife's estate by the time he raised the action. The employers asked the court to strike out the case on the basis that Mr Riddell did not have the right to sue (referred to as lacking "title" to sue).

Mr Riddell's lawyers accepted that he did not have complete title to sue when the action was raised. They argued, though, that Mr Riddell was the only person who could be appointed Executor Dative. The application to the court was therefore a simple administrative step that could be taken during the course of the court action to made good his title. The Sheriff rejected this argument and struck the case out. The Sheriff didn't accept that Mr Riddell was the only person who could be appointed Executor Dative, but that didn't matter. The important issue was whether or not Mr Riddell had been appointed executor at the time he raised the action. Without having been appointed as executor, either by his wife (via her will) or by the court, Mr Riddell simply didn't have any authority to raise the action on behalf of his wife's estate.

Time-bar 

It is unclear from the decision as to why Mr Riddell had not been appointed Executor Dative almost three years after Mrs Riddell had died. The consequence of the case being struck out is that it will now likely be time-barred and Mr Riddell will not be able to re-raise it when he is appointed as executor. Had Mrs Riddell left a will which appointed her husband as her Executor Nominate, the decision would likely have been different, and the case allowed to proceed. Although in that case Mr Riddell would still have had to obtain Confirmation before a final court order was issued, that sort of administrative step could easily have been taken during the course of the action.

In general, putting a will in place before death is the very best way of ensuring an estate is dealt with by the deceased's choice of executors. It also ensures an estate is distributed in line with the deceased's wishes and removes the administrative burden of having to ask the court to appoint executors. In the absence of a will these matters are left to chance and may not correspond with what the deceased would have wanted.