Factual and Procedural Background
The deceased died intestate on 1 July 1996, survived by nine children. Two sons, hereinafter "Pursuer" and "Defender", were appointed co-executors dative by the sheriff on 3 July 1998. The Defender applied for and obtained a grant of confirmation issued at The City Sheriff Court on 12 May 2023 (Grant EXE/37/23). The Pursuer seeks production and reduction of that grant, suspension (including interim suspension), and interdict restraining the Defender or persons acting on his behalf from taking steps in reliance on the grant, particularly in relation to nine properties listed in the inventory. Interim suspension and interim interdict were granted on the motion of the Pursuer on 4 August 2023. An earlier reclaiming motion was disposed of by the Extra Division on 13 August 2024 ([2024] CSIH 25), which recalled interlocutors allowing proof before answer and appointed the cause to the procedure roll. Judge Colbeck delivered the present opinion dated 25 March 2026.
Legal Issues Presented
- Whether reduction of the grant of confirmation issued on 12 May 2023 is competent and, if so, whether the Pursuer has pleaded a relevant case to support reduction.
- Whether suspension and interdict (including interim suspension and interim interdict) are competent remedies in the circumstances of this executry dispute.
- Whether the plea of "all parties not called" is tenable in these proceedings.
- Which of the Pursuer's averments are relevant and should be admitted to probation for proof.
- Whether alleged conflict of interest of the Pursuer's agents justifies procedural relief at this stage.
Arguments of the Parties
Defendant's Arguments
- Many of the Pursuer's averments are irrelevant and should be refused probation.
- The Pursuer has not averred a miscarriage of justice or circumstances requiring reduction; reduction is not competent unless no other remedy is available.
- Alternative remedies exist (eik to the confirmation; appeal to the Sheriff Appeal Court, albeit late), and the Defender would consent to a late appeal.
- Interdict and/or suspension are incompetent—there is no threatened wrong in performing executor duties and rule 53.1 applies; the action seeks to exclude access to the courts.
- The Pursuer's principal agent is conflicted; the court should address that in its supervisory jurisdiction.
- Specific averments of the Pursuer challenged as irrelevant were identified in the Defender's note of argument.
Pursuer's Arguments
- The Defender applied for confirmation without informing the Pursuer and made material errors/omissions in the inventory and application (Articles 10, 16, 18 of condescendence).
- The Defender's application included assets not belonging to the estate and misrepresented intentions to enter into possession and management; the application certificate was not "correct and complete".
- The Defender is unsuitable as executor given prior financial status, intended litigation and investigatory strategy, and reliance on an erroneous inventory.
- Reduction is an equitable remedy available in exceptional circumstances to produce substantial justice; the court should hear evidence (proof) rather than refuse reduction at the procedure roll.
- Suspension and interdict are appropriate to prevent the Defender acting in reliance on the confirmation the Pursuer seeks to reduce.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| [2024] CSIH 25 |
Prior disposition of reclaiming motion by the Extra Division in the same cause. |
Referred to as background; the Extra Division recalled interlocutors allowing proof and appointed the cause to the procedure roll. |
| Malcolm v Park Lane Motors Ltd 1998 SLT 1252 |
Proposition cited by Defendant that reduction is not competent unless no other remedy is available. |
Defender invoked it; Judge addressed availability of alternative remedies and found some of Defender's arguments without merit. |
| Campbell v Barber (1896) 23 R 90 |
Conduct and intentions of an executor are relevant when opposing confirmation. |
Cited by Pursuer to support that conduct/intentions can ground opposition to confirmation. |
| Roy v MacGregor 1935 SLT (Sh Ct) 6 |
Basis of opposition where applicant's conduct demonstrates a position of conflict. |
Cited by Pursuer to support relevance of Defender's alleged conflict of interest and conduct. |
| Bain v Hugh L S McConnell Ltd 1991 SLT 691 |
Reduction is an equitable remedy available in exceptional circumstances to produce substantial justice. |
Relied on by Pursuer; Court acknowledged reduction as an equitable remedy and that proof is required to assess equitable considerations. |
| Cameron v Lightheart 1995 SC 341 |
Obiter remarks on intelligible purpose related to actions seeking equitable relief. |
Pursuer relied on obiter remarks; Court accepted there was an intelligible purpose to the current action for the purposes of admitting averments to probation. |
| Connell v Ferguson (1857) 19 D 482 |
Principle that the issue of "all parties not called" is pars judicis. |
Applied by the Court in addressing the Defender's plea of all parties not called. |
| Wilson v Independent Broadcasting Authority 1979 SC 351 |
Test for sustaining a plea of all parties not called. |
Quoted for the proposition that only parties whose appearance is necessary to dispose of the issue must be called; Court applied this to repel the Defender's plea. |
| Dowie v Barclay (1871) 9 M 726 |
Example of reduction proceedings where alleged false averment concerned domicile. |
Reviewed as historical authority showing reduction proceedings in executry have been brought; Court discussed facts and outcomes of the case. |
| Baines's Executor v Clark 1957 SC 342 |
Another historical instance concerning error in stated domicile and reduction/cancellation. |
Discussed as analogous authority and part of Court's survey of prior reduction proceedings. |
Court's Reasoning and Analysis
1. Procedure roll principle: the judge hearing a procedure roll debate must accept the opponent's averments of fact as true for the purposes of the debate; the Court proceeded on that basis.
2. All parties not called: The Court treated the issue as pars judicis and applied the Wilson test, concluding that heirs on intestacy do not have title relevant to the present action; the Defender's plea that all nine family members be called was repelled.
3. Competency of reduction: The Court reviewed authority and practice (including Currie and historical cases). It held that reduction of a confirmation is competent in executry proceedings and that no authority suggesting such proceedings are incompetent was cited. The Court rejected the Defender's contention that other remedies (such as appeal to the Sheriff Appeal Court) were available in lieu of reduction, noting commissary proceedings are not within the civil appeal route relied upon by the Defender.
4. Pleading sufficiency for reduction: The Court held there is no requirement to aver a miscarriage of justice; rather the Pursuer must aver facts which, if established, would entitle the court to grant reduction. The Court found Articles 10, 16 and 18, as summarised in the opinion, to be relevant and, if established at proof, capable of supporting reduction, subject to later equitable assessment.
5. Competency of interdict and suspension: Rule 53.1 was inapplicable; suspension (chapter 60 Rules) is available to stop unlawful conduct and operates as a prelude to reduction; interdict and suspension were held competent to prevent steps taken in reliance on the confirmation.
6. Conflict of interest: The Defender's averment that the Pursuer's agents are conflicted was addressed. The Court held (a) on the procedure roll it must accept the Pursuer's averments as true, making resolution at this stage inappropriate; and (b) whether there is a professional conflict is for the solicitor to determine, not the Court at this stage; the Defender's plea on this ground was repelled.
7. Relevancy of averments: The Court considered each contested article and admitted most averments to probation as relevant to the remedies sought, while refusing probation for Articles 3 and 7 which were held not to bear on necessity of the remedies.
8. Disposal and outcome of debate: The Court sustained in part the Defender's first plea (refusing probation for Articles 3 and 7), repelled the Defender's second, seventh, eighth and tenth pleas-in-law, allowed a proof on the parties' respective averments, and repelled certain Pursuer pleas not insisted upon. The Defender was ordered liable in expenses of the debate.
Holding and Implications
COURT ORDERS PROOF TO PROCEED; LIMITED REFUSAL OF PROBATION
Holding: The Court (Judge Colbeck) (i) sustained the Defender's first plea in part by refusing probation of Articles 3 and 7 of condescendence; (ii) repelled the Defender's second, seventh, eighth and tenth pleas-in-law; (iii) allowed the parties a proof on their respective averments; and (iv) awarded debate expenses against the Defender.
Implications: The direct effect is that the contested application for reduction, suspension and interdict will proceed to proof on the admitted averments and that two specified averments (Articles 3 and 7) will not be admitted to probation. The Court confirmed that reduction of a confirmation is a competent remedy in executry and that suspension/interdict are available to restrain steps taken in reliance on a challenged confirmation. No novel legal precedent was asserted beyond the application of existing authorities to these facts.