The partner of a deceased girl who experienced an incident in her place of work many months just before her demise has had an action in the All-Scotland Sheriff Personal Harm Court docket dismissed on the ground that he experienced no title to sue.

John Riddell, the executor dative of his late wife Valerie Riddell, argued that he experienced the applicable capability to elevate a claim versus her former employer, Arcus Answers (Holdings) Ltd. The defender argued that, as he had not been confirmed as executor at the time the action was elevated, he lacked these types of title.

The situation was listened to by Sheriff John Mundy. The pursuer was represented by Miller, advocate, and the defender by Stringer, solicitor.

Because of course of action

On 23 February 2018, whilst functioning as a bakery assistant in a grocery store, the deceased tripped more than a rolled-up mat that had been still left in a thoroughfare by a cleaner. She afterwards passed away intestate in July of that exact same calendar year, despite the fact that it was not proposed that her loss of life was connected to the incident. The defender admitted breach of duty on 8 Oct 2020, with a court docket action remaining subsequently served in February 2021.

In July 2021, the pursuer asked for a sist in the circumstance to make it possible for him “to be verified as executor dative” in relation to his wife’s estate. The motion was opposed by the defender on the basis that it inferred that at the time he elevated the motion the pursuer was not his wife’s executor dative and consequently experienced no title to sue.

In a observe of argument lodged by the pursuer, it was explained that he was not at that time appointed or verified as executor dative but that it was understood that a petition for his appointment was in the procedure of remaining presented. Nevertheless, he was entitled to be appointed as these by advantage of becoming the deceased’s partner. The sheriff refused the movement for a sist and permitted the issue to proceed to discussion.

It was submitted for the defender that the pursuer experienced not followed due course of action to be appointed as executor dative and there was, hence, a elementary situation in relation to his title to sue. As he necessary a courtroom petition to confirm his title, the pursuer’s title necessary far more than a basic formality to ensure, and consequently his placement could be distinguished from that of an executor nominate in conditions of a will.

On behalf of the pursuer, it was submitted that the perform of the court docket in appointing him executor dative was purely administrative, with no space for judicial discretion. His title was an imperfect a person that could be perfected by the court docket. Alternatively, he experienced title to sue by the procedure of part 9 of the Succession (Scotland) Act 1964, which would confer title matter to a mere formality of affirmation prior to extraction and enforcement of decree.

No authority to act

In his determination, Sheriff Mundy observed as a generality: “In submissions the term ‘confirmation’ appeared to be utilized interchangeably, to start with for the act of appointment of an executor dative and next for confirmation to an estate. These are of system two different items. This is not a case in which the pursuer has been appointed executor dative and basically involves to acquire confirmation just before extracting any decree. In this scenario, there has been in simple fact no appointment as nonetheless of the pursuer as executor dative to his late wife’s estate.”

Turning to the legislation about appointment of executors dative, he stated: “While the commissary observe appears to be to handle the surviving husband or wife on intestacy whose rights exhaust the entire intestate estate as obtaining an unique appropriate to be appointed executor dative, this is not in fact what is prescribed by section 9(4) of the [1964] Act. The terms of the provision are that the surviving partner has a appropriate to be appointed executor dative, not an unique correct.”

He continued: “Accordingly, it is not accurate to say that the pursuer in the existing case, on the speculation that he would consider the total intestate estate, has an absolute suitable to be appointed executor dative to his late wife’s estate if that is intended to recommend that his suitable is an special a single. Having said that, even if it was, the essential fact is that the right experienced not been exercised at the time this action was lifted. Accordingly, the pursuer had not in fact been appointed as executor dative when the action was lifted.”

Sheriff Mundy concluded: “It issues not in these instances whether or not or not the act of appointment is a judicial or administrative 1. None took put. Portion 20 of the 1964 Act does not as a result run to vest in the pursuer the powers of a trustee at popular regulation or below statute, including the Trusts (Scotland) Acts, which would include the electricity to raise court proceedings. As at the increasing of the existing motion, the pursuer had no authority to act as executor and no electrical power to instigate proceedings.”

The pursuer’s action was for that reason dismissed, with fees awarded to the defender.