PETITION OF PAOLO CIARROCCA AGAINST ANDREA CIARROCCA

Factual and Procedural Background

The deceased passed away on 18 September 2017, leaving a will appointing two of her sons, the Appellant and the Plaintiff, as executors of her estate. Confirmation was granted on 29 March 2018. The estate included two main properties: a London property and an Edinburgh property, as well as furniture, contents, personal effects, and bank accounts. The estate has not yet been distributed due to ongoing disputes between the executors, primarily the Appellant’s unilateral actions and refusal to cooperate with the Plaintiff and the other beneficiary. The Appellant moved to Berlin shortly after the deceased’s death, later residing in the Edinburgh property without consent and without paying rent to the estate, while renting out his own flat. Attempts to agree on the division of the estate failed, with the Appellant making various unsubstantiated claims and acting without the consent of the co-executor or beneficiaries. The Plaintiff brought a petition for the removal of the Appellant as executor. The Court of Session conducted procedural hearings, and after several adjournments and the Appellant’s absence from hearings, proof was heard over two days in May 2021. The court considered extensive evidence, correspondence, and submissions before reaching its decision.

Legal Issues Presented

1. Whether the Appellant should be removed as executor of the deceased’s estate due to breaches of fiduciary duty and malversation of office.
2. Whether the appointment of a judicial factor is warranted to administer the estate following removal of the Appellant.
3. Whether the Plaintiff should remain as executor and continue the administration of the estate.

Arguments of the Parties

Plaintiff's Arguments

• The Appellant has obstructed the administration of the estate by acting unilaterally and without consent, including residing in estate property without paying rent and attempting to divert rental income for personal benefit.
• The Appellant’s actions have caused deadlock, preventing proper distribution of the estate in accordance with the deceased’s will.
• The Appellant’s behaviour amounts to malversation of office, justifying removal as executor.
• The Plaintiff has acted reasonably in resisting unsubstantiated claims and has sought to progress the administration despite difficulties.
• Appointment of a judicial factor is not necessary as the Plaintiff is willing and able to continue as executor.
• Expenses of the petition should be awarded against the Appellant personally due to his conduct.

Appellant's Arguments

• The Appellant denied the petition and claimed to have acted competently and in the estate’s interests.
• He asserted he had a right to reside in the Edinburgh property and made various proposals for division of the estate.
• The Appellant disputed the Plaintiff’s conduct and alleged slander and incompetence by the Plaintiff.
• He made unsubstantiated claims that additional debts were owed to the estate by family members to justify his entitlement to a larger share.
• The Appellant sought an apology and compensation from the Plaintiff.
• The Appellant declined to attend the proof, raising procedural objections which the court found to be without merit.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reviewing the factual findings, including the deceased’s will and the estate’s composition. It noted the deadlock caused by the Appellant’s unilateral and obstructive conduct, which prevented proper administration and distribution of the estate as intended by the deceased.

Applying established legal principles, the court acknowledged the high threshold for removing an executor, requiring more than mere irregularity or negligence. It found the Appellant’s conduct amounted to malversation of office, including unauthorized residence in estate property without paying rent, unilateral disposition of estate contents, attempts to divert rental income for personal benefit, and repeated obstruction of estate administration.

The court rejected the Appellant’s procedural objections and absence from hearings as attempts to delay proceedings and obstruct justice. It found the Plaintiff credible and reliable, and concluded that the Plaintiff had acted reasonably in managing the estate and resisting unsupported claims.

The court considered but rejected the appointment of a judicial factor, noting the Plaintiff’s willingness and ability to continue as executor, and the potential expense and delay a judicial factor would cause. It found no grounds to remove the Plaintiff as executor.

In sum, the court determined that the Appellant’s breach of fiduciary duties and obstruction justified removal, while the Plaintiff should remain as sole executor to complete administration.

Holding and Implications

The court ordered the removal of the Appellant from the office of executor of the deceased’s estate. The Plaintiff will continue as sole executor to administer and distribute the estate according to the deceased’s will.

The court declined to appoint a judicial factor, finding it unnecessary and not in the best interests of the estate at this stage.

Expenses of the petition were awarded against the Appellant personally, reflecting his conduct during the litigation.

This decision directly affects the parties by resolving the deadlock and enabling the estate administration to proceed. No new legal precedent was established beyond the application of existing principles to the facts.