Factual and Procedural Background
The deceased died intestate on 1 July 1996, survived by nine children. The Pursuer and the Defender are two of those children and were appointed executors dative by the sheriff at The City on 3 July 1998. The Defender applied for confirmation by Form C1 dated 4 April 2023. A grant of confirmation (EXE/37/23) was issued at The City Sheriff Court on 12 May 2023 in the names of the Pursuer and the Defender. The Pursuer seeks production and reduction of that grant, suspension (including interim suspension), and interdict against the Defender or persons acting on his authority, to prevent steps in reliance on the grant in respect of nine properties identified in the inventory (including one property acknowledged by the Pursuer to be properly in the inventory).
On 4 August 2023 the Lord Ordinary granted interim suspension of the grant and interim interdict on the Pursuer's motion. The Extra Division recalled earlier interlocutors concerning allowance of proof and appointed the cause to the procedure roll by opinion of 13 August 2024 ([2024] CSIH 25). The present opinion disposes of procedures on the procedure roll debate and determines admissibility to probation and competency issues.
Legal Issues Presented
- Whether a grant of confirmation may be reduced in these circumstances and, if so, what legal requirements apply to reduction of confirmation.
- Whether suspension and interdict are competent remedies pending determination of any reduction action.
- Whether specific averments in the Pursuer's condescendence are relevant and ought to be admitted to probation.
- Whether particular pleas-in-law (including "all parties not called" and conflict of interest pleas) should be sustained or repelled.
Arguments of the Parties
Defender's Arguments
- Many of the Pursuer's averments are irrelevant and should not be admitted to probation.
- The Pursuer has not averred a miscarriage of justice or shown that reduction is necessary or that no other remedy is available; reduction is not competent if other remedies (e.g., eik to the confirmation or late appeal to the Sheriff Appeal Court with consent) exist (citing Malcolm v Park Lane Motors Ltd 1998 SLT 1252).
- Interdict and suspension are incompetent: there was no threatened wrong in performing executor duties; rule 53.1 applies and excludes suspension here; the action improperly seeks to interdict access to the courts.
- The Pursuer's principal agent has a conflict of interest and the court should address that in its supervisory jurisdiction.
- Numerous averments are irrelevant and ought not to be admitted to probation.
Pursuer's Arguments
- The Pursuer seeks reduction, suspension and interdict because the Defender applied for confirmation without informing the Pursuer and made material errors/omissions in the inventory (central averments in Articles 10, 16 and 18).
- The Defender's application included incorrect statements and a certification that the application was "correct and complete" when it was not; several properties were wrongly included or already disposed of.
- The Defender's conduct and intentions (including expressed intentions to pursue litigation and to investigate transactions) evidence unsuitability to act as executor and risk to the estate.
- Reduction is an equitable remedy available in exceptional circumstances to produce substantial justice (relying on Bain v Hugh L S McConnell Ltd 1991 SLT 691 and obiter remarks in Cameron v Lightheart 1995 SC 341); the court should hear evidence (proof) to resolve contested averments.
- Suspension and interdict are appropriate to prevent steps taken in reliance on the confirmation that the Pursuer seeks to reduce.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Malcolm v Park Lane Motors Ltd 1998 SLT 1252 |
Reduction not competent if other adequate remedies exist. |
Cited by Defender; court rejected the Defender's submission that alternative remedies made reduction incompetent in these commissary/confirmation circumstances. |
| Campbell v Barber (1896) 23 R 90 |
Conduct and intentions of an executor are relevant to opposing confirmation. |
Relied upon to support proposition that conduct/intentions are relevant to opposition; court accepted relevance. |
| Roy v MacGregor 1935 SLT (Sh Ct) 6 |
Ground of opposition: applicant's conduct demonstrating conflict. |
Used to support that an applicant's commitment to a position of conflict can justify opposition to confirmation. |
| Bain v Hugh L S McConnell Ltd 1991 SLT 691 |
Reduction is an equitable remedy in exceptional circumstances when necessary to produce substantial justice. |
Cited by Pursuer to justify proof and equitable inquiry; court accepted reduction as available remedy where pleaded facts, if proved, warrant it. |
| Cameron v Lightheart 1995 SC 341 |
Obiter remarks concerning intelligible purpose and necessity of proof for equitable remedies. |
Pursuer relied on obiter remarks; court noted relevance and allowed proof to determine facts. |
| Connell v Ferguson (1857) 19 D 482 |
Principle that the court must consider "all parties not called" as pars judicis. |
Cited by court in addressing Defender's plea of all parties not called; applied to repel that plea. |
| Wilson v Independent Broadcasting Authority 1979 SC 351 |
All parties not called can only be sustained if necessary to dispose of the issue. |
Applied to conclude that calling all heirs was misconceived and that only parties with a right to be confirmed were necessary. |
| Dowie v Barclay (1871) 9 M 726 |
Reduction actions for errors (example: domicile) in proceedings leading to confirmation/decree. |
Discussed as historical authority where facts of domicile were disputed; court used it when analysing competency of reduction proceedings. |
| Baines's Executor v Clark 1957 SC 342 |
Reduction/cancellation where error in stated domicile/certificate led to difficulties. |
Discussed as analogous authority; court relied on historical practice to support competency of reduction proceedings. |
Court's Reasoning and Analysis
The court proceeded on the established rule for procedure roll debates that a party challenging sufficiency must accept the opponent's averments of fact as true for the purposes of the debate and so proceeded on the basis that the Pursuer's averments were true. The court addressed the Defender's plea of all parties not called as a matter pars judicis and concluded that calling all heirs was unnecessary because the issue is confined to whether the confirmation granted to one executor without the knowledge of the co-executor should be reduced; only parties with a right to be confirmed are necessary.
The court analysed competency of reduction: authorities and practice establish that reduction of confirmation is competent; historical case law (Dowie, Baines's Executor) and practice show reduction proceedings have been brought and no authority declares them incompetent. The court rejected the Defender's submission that other remedies (appeal to the Sheriff Appeal Court or eik) made reduction unavailable: an appeal to the Sheriff Appeal Court is not a route for commissary proceedings and no other adequate remedy was available to the Pursuer here.
On the merits of pleading, the court held there was no requirement to aver a miscarriage of justice; it suffices to aver facts and circumstances which, if established, would entitle the court to the remedy. The court found the central averments in Articles 10, 16 and 18, if proved, to be relevant to reduction and permitted proof. The court observed that equitable considerations (including possibility of eik) will be relevant at proof but that assessment must await evidence.
Regarding suspension and interdict, the court held Rule 53.1 (invoked by the Defender) was inapplicable and that suspension (chapter 60) is competent as a prelude to reduction to stop unlawful conduct; interdict and suspension go hand in hand to prevent steps taken in reliance on the confirmation.
On the conflict-of-interest plea, the court held that at this stage it must accept the Pursuer's averments as true and that the question of whether a conflict exists is for the solicitor to determine; the Defender's plea was repelled.
On relevancy of specific articles, the court reviewed each contested article and refused probation for Articles 3 and 7 (finding those averments of no import to the remedies sought) but allowed probation in respect of Articles 4, 6, 8-6, 9-21 where the averments bore upon necessity of the remedies or formed part of the relevant communications and factual matrix.
Holding and Implications
The court allowed a proof of the parties' respective averments, sustained the Defender's first plea-in-law to the extent of refusing to admit Articles 3 and 7 to probation, and repelled the Defender's second, seventh, eighth and tenth pleas-in-law.
Consequences: the cause is remitted to proof on the admitted averments; the Defender is liable in the expenses of the procedure roll debate; the Pursuer's interim orders previously granted remain part of the procedural history and the court signalled that equitable considerations, including possible alternative remedies such as eik, will be relevant at proof. The opinion does not purport to establish a new binding precedent beyond applying established principles to the competency of reduction and the admissibility of averments.