Following our recent blog about a court action regarding a contested estate, another decision has recently been issued about the role of an Attorney in relation to incapax individuals who are entitled to act as executor in a deceased's estate.

The judgment from Aberdeen Sheriff Court considers a petition by Mrs Gordon, who is the attorney of Mrs Rae in terms of a power of attorney (POA). Mrs Rae's late husband left a will in which he appointed two executors who both predeceased him. Mrs Rae is the sole beneficiary under the will. She would therefore be entitled to be appointed executor-dative, which is when the court appoints an executor; however she is unable to make decisions for herself and is deemed incapax (the legal term for being unable to make decisions for yourself). Mrs Gordon therefore applied to be appointed executrix-dative as Mrs Rae's attorney.

Mrs Gordon initially asked the court to be appointed as a "representative" of Mrs Rae. However, the court considered that inappropriate, as a representative is normally appointed in place of an executor who has died before the person whose estate is being considered. Given Mrs Rae is still alive, although unable to take up the office, the petition was amended to seek appointment as executrix-dative as attorney.

The court considered Currie on Confirmation of Executors, an authoritative textbook on the subject of appointment of executors, which appears to consider that it is not competent for the court to appoint an attorney as executor-dative in place of an incapax, whereas it was competent to appoint a guardian or the holder of an intervention order. The authors set out this striking paragraph:

"The power of attorney of a UK resident person will never enable the attorney to apply for confirmation on behalf of the incapax."

Reference was made to an unreported court decision from 1980 called Leishman. The judgment was unavailable except a passage quoted in Currie, which suggested that it related only to a possible executor who was "unfit" but not "incapax". This would be the correct route, as someone who was able to make decisions but did not otherwise feel able to carry out their duties could simply decline to act as executor. The court therefore disagreed with the authors of Currie that it was inappropriate in relation to appointing the attorney of an incapax.

The Sheriff in Mrs Gordon's case could see no reason in principle why it was not "equally as competent" to appoint an attorney as it is to appoint a guardian or an intervener to the office of executor-dative in circumstances such as these. All these parties are subject to oversight by the Public Guardian and the court in terms of the Adults with Incapacity (Scotland) Act 2000. The Sheriff considered that in many, if not most, cases it would be the same individual appointed attorney who may be the appointed guardian or intervener in any event.

There is a strong public interest to ensure that estates are administered promptly, with as little expense as possible. At the court's request, the petition was intimated to the Public Guardian and the Lord Advocate, Scotland's leading law officer, for their respective interests in supervising powers of attorney and representing the public interest. Neither decided to enter the process. The court therefore held that the following wording in the POA would allow Mrs Gordon to be appointed as executrix-dative as attorney to Mrs Rae:

“raise or defend any actions or judicial or other proceedings in which I am or may be interested so far as my Attorney may consider necessary or expedient.”

The court therefore granted the petition, and the petitioner was appointed executrix-dative as attorney of the relict (a legal word meaning the surviving spouse) of the deceased.

This case highlights the importance of having an appropriate up to date POA and will in place. This matter would have been more expensive and time consuming if extra court procedures had been required for the appointment of a guardian or to administer an intestate estate. Unfortunately, the decision in Mrs Gordon's favour isn't binding for similar circumstances which may arise; and it will take a decision of the Sheriff Appeal Court or the Court of Session to create a precedent that all Sheriffs have to follow.

If you require advice in relation to estate planning or related contentious issues, please contact the contributors noted below who would be happy to assist you.


Gillian Grant


Eve Gilchrist