Scottish Sheriff Court Decisions

GS4/03

The Sheriff of Chancery, having resumed consideration of the petition, accepts as sufficient proof of the averments in the petition the affidavits and other documents submitted in terms of the certified inventory of productions and finds the facts stated in the petition proved; serves and decerns in terms of the prayer of the petition

[1] This petition is brought in terms of section 6 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 ('the 1980 Act'). That section, which I shall set out below, provides a procedure whereby the heir of a last surviving trustee in a trust, called as heir of provision in the trust destination, may establish his entitlement to act as trustee by having himself served as heir in general to the last surviving trustee. The facts stated in the petition are proved by the documents lodged. The petitioner's father, who died in 1997, was the last surviving trustee in a trust. The petitioner is the eldest of his four children. There is only issue which arises for decision, but it is of general importance: whether the identity of the 'heir' of the last surviving trustee for the purposes of section 6 is to be ascertained by reference to the law of succession before, or after, the coming into effect of the Succession (Scotland) Act 1964. That issue arises because there is a question whether the present petition is correctly brought by the present petitioner alone. Is he the only proper petitioner, on the ground that it is only he who is the heir of the last surviving trustee? Or should the petition have been brought by all four children together, upon the view that it is they who are the heirs of the last surviving trustee? There is authority in this Court for the latter view. If that authority were to be followed, it would be necessary to continue the petition to enable the petitioner to seek leave to amend, if so advised.

[2] The petition has been served upon the petitioner's three siblings, but none of them has lodged answers. While the petition is therefore unopposed, I have considered it appropriate, in view of the existence of the authority to which I have referred, to fix a hearing. I have now heard submissions from the petitioner's solicitor, Mr Adrian D Ward, MBE, who has presented a full argument with fairness and objectivity.

[3] The trust with which the petition is concerned owes its origin to the trust disposition and settlement of the late Hugh Kerr Locke which was executed in 1920 and registered in the Books of Council and Session in 1928. He disponed his whole means and estate to three persons 'and the survivors and acceptors, and survivor and acceptor of them, [. . .] and to the heir of the survivor, as trustees and trustee for the purposes aftermentioned.' Thereafter some persons were assumed as trustees and others resigned. Latterly there were two remaining trustees, Mr Adam Simpson Turnbull and Mr Joseph Watson. Mr Turnbull died on 23 September 1969, leaving Mr Joseph Watson as the last surviving trustee. Mr Joseph Watson died on 17 March 1997. He was survived by four children: the petitioner, who is his eldest son, and the petitioner's three brothers.

[4] Sections 27 to 50 of the Titles to Land Consolidation (Scotland) Act 1868 ('the 1868 Act') are concerned with service of heirs. Until the coming into effect of the 1964 Act the heir of a last surviving trustee, called as heir of provision in a trust destination, could establish his entitlement to act as trustee by having himself served as heir in general to his ancestor by following the procedure prescribed by those sections. They were repealed, apparently through inadvertence, by the 1964 Act, section 34(2) and Schedule 3. It later became clear that it would be necessary to revive them 'for the limited purpose of enabling the heir of a last surviving trustee to establish the propinquity on which his right to office depended' (Professor Michael C Meston, Succession (Scotland) Act 1964 (5th ed), page 18). That was done by section 6 of the 1980 Act, which provides:

Professor Meston's note to section 6 in Scottish Current Law Statutes is in these terms:

[5] To complete the legislative history it may be noted that on 28 November 2004, the appointed day for the purposes of the Abolition of Feudal Tenure etc (Scotland) Act 2000 ('the 2000 Act'), sections 27 to 50 of the 1868 Act will be repealed of new by the 2000 Act, section 76(2) and Schedule 13, and replaced by new sections 26A, 26B and 26C inserted in the 1868 Act by section 68 of the 2000 Act.

[6] The identity of the 'heir' for the purposes of section 6 was considered by the then Sheriff of Chancery, Sheriff Principal Sir Frederick O'Brien, QC, in MacMillan, Petitioner, decided on 22 February 1984 and reported at 1987 SLT (Sh Ct) 50. In that case the testatrix had died in 1932, and the last surviving trustee in 1983. The petition was brought by a nephew of the last surviving trustee, who had been unmarried. The petitioner also had a sister and several cousins. The question arose whether the identity of the heir should be determined under the law as it stood when the settlement took effect in 1932, or under the rules of intestate succession enacted by section 2 of the 1964 Act which applied at the date of the death of the last surviving trustee in 1983. The learned Sheriff Principal held that the latter rules must apply. He said (at page 52G-J):

[7] In Fraser, Petitioner, 5 February 1985, unreported, the learned Sheriff Principal followed his decision in MacMillan, Petitioner But in Scott, Petitioner, 1994, unreported, the then Sheriff of Chancery, Sheriff Principal C G B Nicholson, QC, granted the prayer of a similar petition which had been brought by one of some 20 people who would have been entitled to succeed to the last surviving trustee on intestacy under the 1964 Act. He did not issue an opinion. It seems clear, however, from correspondence and memoranda relative to the petition which have been produced by Mr Ward, who also acted for the petitioner in that case, that the learned Sheriff Principal declined to follow MacMillan and Fraser. It may be noted that a Sheriff of Chancery is not bound by the decisions of his predecessors. Thus the decision of Sheriff Sir John Fenton, KC, in Waterston, Petitioner 1947 SLT (Sh Ct) 73 was not followed by Sheriff Principal Sir William Bryden, QC, in McBride, Petitioner 1975 SLT (Sh Ct) 25 or by Sheriff Principal Sir Frederick O'Brien, QC, in Robertson, Petitioner 1980 SLT (Sh Ct) 73.

[8] I have reached the view that I also should decline to follow MacMillan and Fraser. While I would generally depart only with great diffidence from any views expressed by Sheriff Principal O'Brien, I do so with less hesitation in this case since it is clear that in MacMillan he did not have the advantage of hearing submissions such as those that were addressed to me. Mr Ward presented a detailed argument and adopted as part of it an article he had written after acting in Scott, 'Who is the Heir of Provision in Trust?' (1995) 40 JLSS 30. Having considered his submissions, I am satisfied that they are well founded.

[9] First, it is important to distinguish between matters of succession and matters of administration. It is not a novel concept in the Scottish law of succession that upon a death one group of people should succeed to the estate while a single individual should be appointed for administrative purposes. That was always the position in relation to moveable estate, and since the 1964 Act it has been the position in relation to the whole estate (as regards succession) and appointment as an executor (as regards the administration of that estate). The distinction between succession and administration is maintained in the 1964 Act, where Part I is concerned with intestate succession and Part III with the administration and winding up of estates, while Schedule 2, paragraph 2, distinguishes between those entitled to succeed on intestacy and the executor of the deceased. Prior to the 1964 Act the distinction existed in the case of an heir of provision in trust, in that he was an administrator, and did not necessarily succeed to any beneficial interest upon the death of the last surviving trustee.

[10] Secondly, the rules of law concerning service of an heir of provision in trust were not altered by the 1964 Act. Section 36(2) provides, read short, that any reference in the Act to the estate of a deceased person is to be construed, unless the context otherwise requires, as a reference to his own estate: it does not include estate held by the deceased in trust. Section 33, which is concerned with the construction of existing deeds, contains nothing that would alter the interpretation of 'heir' in such a deed. It would have been a strange development if the 1964 Act had required the administrative role of the heir of provision in trust to be transferred to the class of persons entitled to succeed to the last trustee's own estate under Part I. It is not, I think, remarkable that the procedure of serving a single individual as heir of provision in trust in order to provide continuity of administration of the trust estate remains unaffected by the 1964 Act.

[12] Thirdly, it is necessary to notice the words in parentheses in section 6 of the 1980 Act: sections 27 to 50 of the 1868 Act are revived 'with such amendments as had been made to them prior to the coming into force of the said Act of 1964'. Thus the law to be applied in an application such as the present is the law as it stood immediately before the 1964 Act came into operation. It is not said that the word 'heir' is to be construed in the light of the 1964 Act.

[13] Finally, this view of the matter is, I think, supported by considerations of practicality and good sense. If 'heir' were to be construed as in MacMillan, the heirs in many cases might be large in number and some might be difficult to trace; and they would have no necessary connection with the persons entitled to the trust estate. In Scott, for example, the 'heirs' would have been some 20 in number; the whereabouts of many of them were unknown; and the value of the property held in trust was about £3,000. This issue is discussed in the following terms in Wilson and Duncan, Trusts, Trustees and Executors (2nd ed) page 345, paragraph 22-13 (which was not cited at the hearing):

[12] For all these reasons I have concluded that MacMillan should no longer be followed. This Court will now apply the ruling in this judgment. I find, therefore, that this petition is correctly brought by the present petitioner alone. Since the facts stated have been proved, I have granted the prayer of the petition.