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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacRobert v Smith [1998] ScotCS 21 (9 October 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/21.html Cite as: [1998] ScotCS 21

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The pursuer is the judicial factor on the estate of the late Thomas Peter Cahill. He is the nominal pursuer in this action having granted permission to James William Cahill to raise proceedings in his name and to act as dominus litis. James William Cahill is the son of the late Thomas Peter Cahill ("the deceased"). He is the sole residuary legatee of the deceased in terms of the deceased's Will dated 2 July 1986. The defender is a daughter of the deceased. She lives in Braco, Perthshire.

Before the procedure roll debate began, leave was given to the pursuer to amend his pleadings. The effect of the pursuer's amendment was to add a new first conclusion, further averments and related pleas-in-law. The new conclusion seeks accounting by the defender of her intromissions with the estate of the deceased and payment of the balance, failing which payment of the sum of £23,200. Prior to the amendment, the first conclusion had sought declarator that the defender was indebted to the estate of the deceased in the sum of £23,200, with a second conclusion seeking payment of that sum. The related unamended pleas-in-law were as follows:

I should add that these pleas were amended by the Minute to substitute "third" for "second". However, the second plea-in-law was further amended at the Bar during the procedure roll debate to delete the words "lent to her and". The pleas-in-law added by amendment were in the following terms:

The pursuer's case begins by setting out that the deceased who died on 31 July 1986, in terms of his Will bequeathed pecuniary legacies to two of his daughters other than the defender. These legacies amounted to £7,000, with a further pecuniary legacy of £3,000 to the dominus litis. The residue was also bequeathed to him. This included a house in Yoker, Glasgow, which belonged to the deceased. It is said that at the time of drafting and executing the Will the deceased reasonably believed that his moveable estate which consisted in sums of money in cash and in bank accounts, was sufficient to meet the pecuniary legacies and any debts. After the death of the deceased, the executor, who was the husband of the defender at the time, submitted an Inventory of the estate for inheritance tax purposes which stated that the gross moveable estate of the deceased was about £722, the only other asset being the said house in Yoker. It is further said that at the material times prior to his death, the deceased was in failing health and had moved from the house at Yoker to the defender's house in Braco.

The sum of £23,200 represents the total of certain sums referred to in Articles 3 and 4 of the Condescendence. Article 3 refers to and concerns a sum of £18,000 in cash which the pursuer avers to have been derived from the deceased's wife. She died on about 6 April 1986. It is said that following her death this sum belonged exclusively to the deceased. This sum was then lodged in the Stirling University branch of the Bank of Scotland, being placed there in joint names of the deceased and the defender and on 2 May 1986 was transferred to a money market account with the Bank's Robertson Avenue branch in Edinburgh. It is said that the deceased had indicated to his son that the defender had opened a bank account for him and that in a separate conversation the defender had told her brother that the account was opened in joint names upon the initiative of the defender as the deceased had a bad leg and accordingly the defender was better placed to carry out banking transactions. The averments also make reference to its being natural for the deceased to wish to use the defender as an administrator of his funds given her qualifications in financial matters. It is said that she is presently a banker and tax expert. There was therefore good reason for her assisting the deceased in the control of his funds even without a formal arrangement such as a Power of Attorney, the deceased having a large amount of cash in his house and being of failing health. It is averred that the defender made two withdrawals from the Edinburgh bank account in May 1986, the first of £1,000 and the second of £2,000, and that on 2 July 1986 she further withdrew the sum of £15,200 from that account. This last sum was withdrawn after the grant by the deceased of a Power of Attorney over his estate which grant had been made by the deceased on 27 June 1986. It is further said that the defender was given the power to sign in respect of the Edinburgh bank account because of the failing health of the deceased, and that there was no gift of the sum held in the account to the defender. As regards the sum of £15,200 it is said that this was transferred within a day of the deceased undergoing surgery for cancer from which he did not expect to survive and that there was nothing to suggest that it was required or indeed spent for the benefit of the deceased prior to his death. In these circumstances the pursuer avers that in relation to all the sums so withdrawn "the defender is under an obligation to account to the pursuer for all sums intromitted by her either qua attorney or as the de facto administrator of her late father's estate". The pursuer also avers that the defender has intromitted with items of the property of the estate without good reason and that the sums referred to were not intended to be gifted nor were they lent.

The averments in Article 4 refer to a further bank account with the Royal Bank of Scotland, Clydebank Branch. While the averments could have been clearer, there is sufficient stated to import that the account was in the deceased's name, that on 30 April, 7 May and 6 June 1986 sums of £1,000, £1,000 and £2,000 were transferred out of the account by cheques made out to the defender and that it was not the intention of the deceased to donate the said monies to the defender. It is further asserted that the sums were paid to the defender "to administer the testator's estate". By amendment the following averment was added at the end of the article:

Counsel for the defender in a powerful attack upon the confused and indeed confusing state of the pursuer's case, submitted that there were no averments to entitle the pursuer to succeed in establishing any relationship between the defender and her late father such as to justify a ground of action separate from that which gave rise to the fourth plea-in-law of the amended record. In particular there was nothing in the averments from which there could be spelled out a liability to reimburse the estate "of all monies operated by her" as set out in the second plea-in-law. There was no relationship between the defender and the deceased such as debtor and creditor or borrower and lender to be read out of the pursuer's averments. Indeed, as counsel pointed out, the second plea-in-law had been amended at the bar to delete reference to loan and the averments specifically stated that there had been no donation. It is sufficient to say that I agree with counsel for the defender. Nothing said by counsel for the pursuer persuaded me that there was any basis in the averments for a case that an obligation on the defender's part to reimburse the estate arose independent of or additional to any obligation to account for her intromissions in administering her father's estate for his benefit. I therefore agree that there are no relevant averments to justify the declarator sought in the second conclusion of the amended record or the second and seventh pleas-in-law which are related to that conclusion. These pleas fall to be repelled. At the same time I shall exclude from probation the sentence at the end of Article 4 of the Condescendence which was added by way of amendment.

Counsel for the defender then went on to attack the averments so far as directed to liability on the part of the defender to account for her intromissions. He accepted that on the basis that a Power of Attorney had been granted by the deceased to the defender, there would be a liability arising thereafter on the part of the defender to account for her intromissions with her father's estate. However he criticised the terms of plea-in-law 4 and its reference to a liability to account on the defender's part "qua quasi attorney". I am bound to say that this description of a legal relationship giving rise to a liability to account appears to be novel. However, it is proper to look back to the averments upon which the plea is founded. The averments which I have quoted before in relation to what passed in the period after the death of the deceased's wife in April 1986 until the death of the deceased would, if proved, be sufficient, in my opinion, to set up a fiduciary relationship between the defender and her father in relation to the administration of his affairs such as to impose upon the defender an obligation to account for her intromissions with his monies whether before or after the granting of the Power of Attorney so far as they involved receipt by her of the sums which are referred to in the averments in each of Article 3 and 4 of the Condescendence. The pursuer is entitled to an opportunity to establish that even prior to the granting of the Power of Attorney the defender was acting as no more than the de facto administrator of monies which belonged to her father and were to be used for his benefit alone.

I should note that counsel for the defender also criticised certain specific averments in each of Articles 3 and 4 although except in two instances, he accepted that they were apt to remain in the pleadings if a proof before answer were to be allowed. In each of the two particular instances which he invited me to exclude the averments, namely an averment to the effect that there was no evidence to suggest that any of the sum of £15,200 was spent upon the estate and further averment that there was little or no reason for the defender acting as attorney in the estate of the deceased, these are assertions which can remain in the pleadings since they reflect the effect of averments of fact otherwise made by the pursuer.

Counsel for the defender conceded that if I were to be satisfied, as I am, that there is sufficient on record to entitle the pursuer to a proof of his averments in relation to a liability to account, a proof before answer should be allowed. Counsel for the pursuer accepted that this should be so and at the same time that his plea to relevancy should also be left standing. There was some debate as to whether in addition to the pursuer's third to sixth pleas-in-law the pursuer's first plea-in-law should remain. In my opinion this plea is inept standing the terms of the pursuer's fourth, fifth and sixth pleas-in-law. It makes no reference to any basis in fact or in law upon which the defender could be held to be liable to make payment and cannot stand separate from those other pleas. I shall therefore repel the first plea-in-law for the pursuer along with the second and seventh pleas-in-law, exclude the averment in Article 4 of the Condescendence referred to before and allow a proof before answer limited to the ground of action based upon count and reckoning in relation to any liability on the defender's part to account for her intromissions with the deceased's monies so far as averred on Record.

Act: Glennie, QC, Henderson

Henderson Boyd Jackson, WS

Alt: I G Mitchell,QC

Campbell Smith, WS

9 October 1998