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Houses: A case for Attorneys and Executors

Old house unsplash

A corner property in a popular Aberdeenshire town delivered one of the most important court rulings for Scottish law, Turner -v- Turner [2012] CSOH 41.

In Turner, 33 Dunnottar Avenue was left by its owner to a family member in her Will. The owner subsequently had to move into a nursing home because of declining health. A decision was taken by their Attorney to sell the property. They had the authority to do this under the Power of Attorney. It was in the lady’s best interest that the property was sold to prevent its condition deteriorating but it was not essential to fund her care.

Traditionally where there is a legacy of a specific item, if it is disposed of, the legacy fails. The beneficiary does not inherit. The court in Turner decided that (a) where a property subject to a legacy is sold by an Attorney and (b) the sale was not “a necessary act” but a “prudent act of administration” then the beneficiary will be entitled to receive the net sale proceeds.

The differences outlined in Turner will need to be considered both by Attorneys when making decisions to sell and Executors when winding up an Estate. Attorneys should confirm whether any item they are seeking to sell is subject to a legacy while Executors cannot presume that a legacy fails simply because the asset has been disposed of.

These technical issues can result in costly mistakes if Executors and Attorneys are not properly advised.

This is a summary of the key points and should not be relied on. Here at Burnett & Reid our Private Client team can guide Executors through the Estate process and regularly advise and act as Attorneys.