TOMALA AND GILLESPIE MACANDREW (TRUSTEES) LTD FOR DIRECTIONS UNDER SESSION ACT 1988 AND THE RULES OF THE COURT OF SESSION 1994

Factual and Procedural Background

The opinion concerns petitions brought by the executor dative of a deceased woman, referred to as the Deceased, and the trustees of a trust in which she held a liferent interest. The petitions seek directions under section 6(vi) of the Court of Session Act 1988 and relevant court rules regarding the distribution of the Deceased's intestate estate and the trust fund. The central factual question is whether a man named Marc Lawrence, who died in 2020, is the same individual as Joseph Grosvenor, the name used by the Deceased's husband whom she married in 1991. The Deceased had three marriages, with the last to Mr Grosvenor, whose birth name was Sidney Collins and who had used multiple aliases. After the Deceased’s death in 2016, investigations revealed that Marc Lawrence shared the same birth date and place as Mr Grosvenor and had lived at an address similar to one Mr Grosvenor had used in correspondence. The resolution of this identity question affects the entitlement of the surviving spouse to legal rights in the estate and trust income. The petitions also raise issues of procedural competency concerning the determination of factual questions by way of directions and the capacity of an executor dative to petition for directions.

Legal Issues Presented

1. Whether the court may competently determine a question of fact in an application for directions under section 6(vi) of the Court of Session Act 1988.
2. Whether an executor dative has the power to present a petition for directions under that provision.
3. Whether Marc Lawrence was the same person as Joseph Grosvenor (also known as Mr Gray) and, accordingly, whether he was alive and still married to the Deceased at the time of her death.
4. If Mr Grosvenor was deceased, whether he predeceased the Deceased.
5. Whether the Deceased and Mr Grosvenor were divorced prior to her death.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether it was competent to determine a question of fact in a petition for directions under the relevant statutory provisions and court rules. It acknowledged prior cautious approaches but found no principled reason to exclude factual questions from such petitions, provided all interested parties have an opportunity to participate and the inquiry is straightforward. The court also held that an executor dative is entitled to apply for directions, assimilating their status to that of gratuitous trustees under section 20 of the Succession (Scotland) Act 1964.

Turning to the central factual question, the court rejected the petitioners’ submission that Mr Grosvenor should be presumed dead as of 2010 given the absence of contact since 2003. Instead, it found compelling evidence that Marc Lawrence was indeed Mr Grosvenor, noting the shared date and place of birth, the overlapping addresses, and the photographic resemblance. The court gave little weight to the lack of contact after 2003, considering Mr Lawrence’s dementia. Consequently, it concluded that Mr Grosvenor (aka Mr Gray) was alive at the time of the Deceased’s death and remained married to her, as no evidence of divorce was presented.

Holding and Implications

The court directed the petitioners to administer and distribute the Deceased’s intestate estate and the trust fund on the basis that Marc Lawrence was the same person as Joseph Grosvenor and that he was still married to the Deceased at her death. The court answered the specific questions as follows: affirming that Mr Grosvenor had not died before the Deceased, and that no divorce had occurred prior to her death.

The expenses of the applications were ordered to be paid from the respective estates. The decision directly affects the parties by confirming the surviving spouse’s entitlement under intestacy and the trust deed. No new legal precedent was established beyond the application of existing principles regarding petitions for directions and executor dative powers.