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  4. Bank executor not entitled to appoint attorney, sheriff rules

Bank executor not entitled to appoint attorney, sheriff rules

7th April 2015 | executries

The fiduciary duties of an executor nominate are personal to the holder of the office, and the law is settled that neither an individual nor a corporate executor is entitled to appoint an attorney to carry out their duties, a sheriff has ruled.

Sheriff John McCormick at Glasgow gave his decision in an application relating to the estate of an individual referred to as K F C, who had appointed The Royal Bank of Scotland plc as one of his executors. The bank had granted a power of attorney in favour of five named partners of Brodies LLP, one of whom had signed the application for confirmation.

It was submitted for the bank that the power had been intended to provide for the administrative function of executing deeds, though conceded that the wording of the power went much further. It was also accepted that the bank had not until recently sought to delegate powers in this way, and now sought to do so for reasons of administrative convenience.

Sheriff McCormick said it was settled that an executor who was an individual was not entitled to appoint an attorney, and although it was sought to draw a distinction between an individual and a corporate executor, no reason was offered for this. There had not been any difficulty prior to the bank's change of policy in this respect. The only recognised exception was where an executor resided abroad.

Accordingly the sheriff refused to grant warrant to issue confirmation on a declaration signed by the attorney.

He added in conclusion that the proper course would have been for the bank, if it wished to adopt a different approach, to draw it to the sheriff clerk's attention and seek a hearing before a sheriff, rather than wait for a vigilant sheriff clerk to notice. He observed that a different bank had submitted a similar application seeking to appoint employees of a separate bank with a registered office in London – to be governed by English law, “an example of the perils of the approach being suggested”, the sheriff commented.

And he would deprecate it if the fiduciary duties accompanying the office of executor had become “an administrative inconvenience occurring between death and fees”.

Click here to view the opinion.
 

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