An executor does not have an absolute and unfettered right to seek sequestration of the deceased’s estate, a sheriff has ruled.

Sheriff Douglas Kinloch gave the ruling, on a point which he described as a novel one, at Livingston Sheriff Court in a petition by the executor of Alexander Miller to have the deceased's estate sequestrated.

The petition was opposed by one of the deceased's children, also Alexander Miller. 

A farmer, the deceased had left an estate said to be worth at least £1.3m, but it appeared that the bulk of the estate had been transferred to another child, leaving insufficient to pay the respondent's legal rights. Certain court actions had been raised seeking recovery of assets and an accounting. The petition was brought on averments that the estate was insolvent; the respondent averred that it was not insolvent because the executor had breached the duties incumbent on him in transferring assets out of the estate, and had an obligation to make good to the estate any losses incurred as a result of his actions.

The petitioner argued that an executor had an absolute right to petition at any time for the sequestration of an estate under his control. There was no requirement for the estate to be insolvent. The respondent argued that an executor had no right to seek the sequestration of the estate unless it was insolvent, and that the petitioner’s averments did not disclose true insolvency.

Accepting the respondent's arguments, Sheriff Kinloch said the consequences of sequestration were serious and "it would be surprising if such a serious step did not require some justification" – especially bearing in mind that the costs, where the trustee would almost invariably be a professional person, were likely to be significant. "I found the idea that an executor could incur the costs of sequestration, possibly to the detriment of the beneficiaries of the estate, without any other justification than that the executor wished to do so, difficult to accept", he added.

It followed that there had to be a proof on whether the estate was insolvent. However an addendum to the judgment records that an appeal for which leave had been given was abandoned, and the petition ultimately dismissed by agreement.

Click here to view the judgment.