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A question of ademption - Gordon Turner v John Turner and Others [2012] CSOH 41

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A question of ademption - Gordon Turner v John Turner and Others [2012] CSOH 41

15 March 2012

Gordon Turner v John Turner and Others [2012] CSOH 41

A lady made a will and bequeathed her house to one of her relatives with the residue of the estate to be distributed amongst eight people.  After she made the will she executed a power of attorney in favour of her solicitor.  She subsequently lost mental capacity and moved into a nursing home.  The attorney decided to sell the house, not through financial necessity but as a prudent act of administration.  The lady died and her executors could not agree as to whether the money representing the value of the house should pass to the specific legatee or should fall to the residue.

The executors raised proceedings.  The question is one of ademption.  It is a matter of some importance and difficulty and has not previously been the subject of a decision by a Scottish court.  Lord Tyre considered the history of the office of attorney, or factor, in Scots law and the development of two separate but related strands of succession law: (a) conversion for purposes of succession, and (b) ademption of legacies.  He concluded that he should seek guidance from case law concerning the effect of the actings of a curator bonis on ademption of legacies and, under reference to Macfarlane's Trs v Macfarlane 1910 SC 325, concluded that the legacy was not adeemed by the sale of the house.  The specific legatee stood to benefit.

The case was also interesting from a procedural point of view.  Parties were agreed that it should proceed by way of summary trial.  This is a procedure that is little used but which offers speedy resolution in cases where agreement can be reached as to the issue between the parties.  Parties must also agree the identity of the judge and forego any appeal.

Morag Ross was instructed for the successful first defender.