Gordon Turner v John Turner [2012] CSOH 41

This case concerns a matter that had not previously come before the Scottish courts.

The facts of this case were not in dispute and were set out in a joint minute agreed by the parties.   Miss Isabella Gordon granted a Power of Attorney in 1996 in favour of her solicitor.  This included the power to sell any part of her estate.  In 1997 she executed a Will in which she bequeathed her home in Stonehaven to John Turner.  In 2001 Miss Gordon became incapable of managing her own affairs and moved into a nursing home.  Her Attorney sold her home later on that year.   Miss Gordon died in 2008.

The question for Lord Tyre was whether the legacy of the house was “adeemed” or was it “converted”, so that the beneficiary is entitled to a sum equivalent to the proceeds of sale of the house.

“Where the subject matter of a bequest (whether heritable or moveable) has been disposed of by the testator so that it no longer forms part of his or her estate at the date of death, the bequest or legacy is said to have been adeemed and therefore cannot take effect.”

Lord Tyre also made the following point: “In contrast to the doctrine of conversation, the intention of the testator is not regarded as relevant to ademption.”

The crucial point here appeared to be that the parties agreed the following:  “The sale of the house by [the attorney] was a prudent act of administration, having regard to the disadvantage in leaving the house empty with attendant maintenance costs.  It was not a necessary act, not having been an act which [Miss Gordon] as principal, had she been sui juris ["full legal capacity"], would have been constrained to effect, there being sufficient other funds available to meet the costs of [Miss Gordon's] care.”

Lord Tyre held that as the sale of the house by the Attorney was a prudent act of administration rather than a necessary act to fund Miss Gordon’s care, the legacy was not adeemed by the sale.  John Turner was therefore “entitled to receive a cash equivalent to the proceeds of sale of the house.”  In addition he is entitled “to receive a sum representing the fruits of these proceeds during the period since the date of receipt of the sale proceeds.”

One last point on expenses.  Lord Tyre agreed that both parties were entitled to their expenses from the executry estate.

Thanks to Gillian Campbell of Biggart Baillie and Nicola Smith of Cairn Legal for tweeting about this case.

The case report can be found here.

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Baronet’s son loses “name and arms case”

The England & Wales Court of Appeal has ruled that a baronet’s failure to adopt the ancestral family name within a certain period of time did not disqualify him from inheriting the family castle.

The background to this case is Corby Castle in north Cumbria.   Sir John Howard-Lawson inherited Corby Castle in 1962 and sold it for £2.5m in 1994.  Corby Castle had been the family seat for around four hundred years.

His own son Philip Howard later demanded around £1.5m from the sale proceeds.  Philip’s argument was that his father had not complied with the archaic terms of a will executed by his great-grandfather Philip John Canning Howard.  In particular he argued that his father did not change his surname to “Howard” and adopt the family coat of arms within the deadline referred to in the will.  A deadline of one year had been included in the will.  Such “name and arms clauses” were traditionally used by the landed classes to keep the family name and arms linked to the estate.

The Court of Appeal held that as his father had at least applied to use the family surname and coat of arms before the deadline, he had complied sufficiently with the will’s terms.   The College of Arms had not granted his father these rights until after the one year deadline.   Interestingly a court had decided in 1961 that Sir John’s father, William, had not met the deadline imposed by Philip John Canning Howard.

Philip Howard lost his case in the England and Wales High Court and now the appeal too.  It is reported that he intends to take this matter to the Supreme Court.

The case report can be found here.

A report from the STEP journal can also be found here.

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Ibuna v Arroyo, 2012 EWHC 428 (Ch) – another dispute over a corpse

This is another case involving a family dispute over the corpse.  In this case it was over the corpse of a Filipino politician and was heard before the High Court of England and Wales.

In coming to its decision the England and Wales High Court placed great emphasis on “… his clearly expressed wishes both demonstrated in evidence and by signed documents.”

The case report can be found here.

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Online estate fraud

Interesting article in the Law Society Gazette on online estate fraud.

Fraudsters are increasingly targeting the estates of the deceased for valuable internet hosted assets such as online bank accounts.  The problem is that a Will becomes a public document when you seek confirmation.   A similar procedure applies in England & Wales.

The solution is stay “low tech”.  For example leave a note of your online account details  in a sealed envelope which can be kept by your solicitor alongside your Will.

The article can be found here.

A recent article on how one in ten of Britons have or intend to include their website passwords can also be found here.


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Judicial Review of a decision of the MOD – family dispute over where a soldier is to be buried

Mrs SC for Judicial Review of a decision of the Service Personnel and Veterans Agency of the Ministry of Defence  Outer House, Court of Session, [2011] CSOH 124

The background to this case is a family dispute.  In this case the dispute is over where the body of Private Mark Connolly (MC) will be buried.   MC’s mother wishes to have him buried in Methil.  His widow wishes him to be buried in Forfar.

The petitioner in this matter is the widow of MC.  MC died on 14 May 2011 whilst on a training course in Germany.   MC named his mother and brother as his executors in his will.  MC’s widow is the sole beneficiary.

It appears that the MOD initially wished to release MC’s body to MC’s widow.  It was only when MC’s mother disputed the funeral arrangements, and after looking at MC’s will, that the MOD indicated that they would now release the body to MC’s mother.   At that point the Forfar funeral arrangements were almost complete.

MC’s widow maintained that although MC did not leave written instructions regarding his funeral he made his wishes known to her.   MC told her that he wished to be buried but not in Methil.  He wished to be buried wherever he and his wife were settled.   They had settled in Forfar.

The MOD indicated its change of mind in a letter to MC’s widow dated 6 June 2011.  It is respect of this letter that MC’s widow sought judicial review.

 Lord Brodie began by looking at the issue of competency. 

“Critically, nothing in the letter of 6 June 2011 affects the rights or interests of anyone and indeed it does not purport to do so.  It neither constitutes nor expresses a decision.  All that there is in the letter is a statement of intention to transfer custody of the body to the other party that the writer of the letter understands is entitled to its custody as a matter of law.  Whether or not that understanding is correct, neither the writing of the letter nor the implement of the intention expressed in any way alters parties’ respective rights or interests.  Were it to be the case that the petitioner is entitled as a matter of law to demand custody of the body, neither the letter nor a transfer to the second respondent in implement of the intention expressed in the letter would affect that.  Put shortly, in my opinion there is nothing here to judicially review.  I recognise that in similar circumstances in England that courts may take an approach to applications for judicial review which is more pragmatic and closer to what parties would have wished me to do here …, but the nature of the equivalent English jurisdiction is different from that in Scotland.”

Although Lord Brodie decided to dismiss the petition as incompetent he decided to address the petitioner’s claim that the decision of the MOD contravenes her rights under article 8 of the European Convention of Human Rights.  Indeed Lord Brodie went as far as to say that: “I may be wrong on my conclusion as to competency.”

Article 8 claim

Article 8 of the Convention provides:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

MC’s widow contends that her article 8.1 rights are engaged because the decision of which she complains deprives her of the opportunity of taking custody of her husband’s body, arranging his funeral and determining where he is interred.

Lord Brodie split his analysis into three parts.  (1) Whether there had been interference with the petitioner’s rights under article 8.1, (2) whether any interference was according to law and (3) whether such interference was justified by any of the other provisions of article 8.2


On the question of whether there had been interference, Lord Brodie proceeded “upon the basis that transfer of the deceased’s body would amount to an interference with [MC's widow's] article 8.1 right to respect for family life.”

According to law

Lord Brodie then discussed what he thought was the position under both English and Scots law.

Under English law the executor has priority when it comes to funeral arrangements but that this right may be restricted by the courts.   Lord Brodie noted that there is no direct authority on this point under Scots law.

The case of Evans v McIntyre was though discussed and Lord Brodie noted  some of Sheriff Scott’s comments in that case:

“On the basis of the authorities to which I was referred and the submissions I heard, I would see that there is no question but that a confirmed executor or someone who entitled to be confirmed as an executor and who intends to seek confirmation (the prospective executor) is a lawful custodier of the body of a deceased for the purpose of burial.”

Lord Brodie, however, did not feel “that matters are as cut-and-dried” as in Evans and noted:

“The fact that he [the executor] pays does not make him responsible for arranging the funeral.  It is the surviving spouse and next of kin (not the executor) who have rights to solatium for unauthorised interference with the dead body.”

“Thus, in Scots law, I would see near relatives as well as the executor or prospective executor as having rights and interests in respect of the body of the deceased.  The nature of these rights is not the same.”

“Determining what are appropriate funeral arrangements by reference to the quality of relationships within a family appears to me a task for which the court is quite unsuited.”

The “intends to seek confirmation” comment from the Evans case, see above, is also important as interestingly Lord Brodie was not certain that MC’s mother would be appointed as executor due to her answer to his question on her being confirmed as executor.  MC’s mother said she would take legal advice before deciding.

Other provisions of Article 8.2

“To respect the rights of both the [the MOD] cannot avoid favouring one.“  Lord Brodie felt that the MOD were in an impossible position and that its actions were justified under Article 8.2.

In summing up Lord Brodie said:

“The first respondent [the MOD] may therefore lawfully transfer the body of the deceased to the second respondent [MC’s mother] but he may also lawfully transfer the body to the petitioner [MC’s widow].  Nothing in this decision should be construed as an expression of preference of my part of the position of the second respondent [MC’s mother] over that of the petitioner [MC’s widow].”


Although Lord Brodie held the petition to be incompetent he helpfully continued with his analysis of the matter.  Lord Brodie saw that the MOD were in an almost impossible position here.  Whatever it did the other party would feel aggrieved.

One final point.  I was surprised that more was not made on the fact that MC did not appoint his widow as an executor because of erroneous advice from the army.  The army it was claimed had told MC that it was not appropriate to appoint the same person as executor and beneficiary.

The full case report can be found here.

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Court of Session to decide where soldier is buried

The widow and mother of a Scottish soldier, who survived an explosion in Afghanistan only to die in an alleged brawl in a German pub, are locked in a court battle over where he will be buried.
Private Mark Connolly’s wife has lodged papers at the Court of Session in a bid to overturn a decision by the Ministry of Defence.  The MOD says it has to release her husband’s body to his mother because she was named as Executor in his will.   That has been challenged by Mrs Connolly’s lawyers.
Mrs Connolly’s lawyers are claiming that the MOD has wrongly based its decision on English law and that Scots law should apply in this matter.  Her lawyers are also arguing that under Scottish law it is not automatically the case that the Executor decides where and how a person is buried.
The story from the Scotsman can be found here.
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Political bequest

Edwin Morgan, who died last year aged 90, is thought to have left the SNP a significant part of his estate.

He became the Scotland’s first national poet – or Scots Makar – in 2004 by then First Minister Jack McConnell.

The report from the BBC can be found here and the Sunday Herald here.

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