|Scottish Corporate Executor Cannot Delegate Role to Solicitors|
The Glasgow Sheriff Court has ruled that a corporate executor appointed in a Scottish will cannot delegate its duties to an attorney.
The case involved the Royal Bank of Scotland, which had been nominated as executor by a client referred to as KFC. For 'reasons of administrative convenience', the bank then instructed a law firm, Brodies, to act in its place. It granted a power of attorney to the law firm's partners, with the intention of authorising them to execute the deeds relevant to obtaining confirmation of the will. One of these nominees later signed the application for confirmation that was submitted to the Sheriff's Court.
However, the clerk who examined this application noticed it departed from long-standing practice. It is settled law in Scotland that an individual nominated as executor cannot appoint an attorney to seek confirmation, unless he or she lives abroad. In the KFC case, the bank sought to distinguish between individual and corporate executors. It argued that at common law a company can appoint an attorney to carry out its functions, including executing documents, on its behalf. Since it appears never to have tried to delegate executries before this case, the legal point was a new one.
Sheriff John McCormick ruled, however, that there was no reason for the law to differ between individuals and corporates in this respect. On the contrary, he said, there were 'sound public policy reasons' for treating both the same, in that permitting an executor to exercise its powers through an attorney would be 'open to abuse'.
'Civil liability may lie with an executor so it is in the public interest that an individual or a company, having accepted office as executor, does not distance himself, herself or itself from the fiduciary responsibilities incumbent upon an executor.' The bank should either fulfil its own responsibilities or resign its office, he said, and he refused to grant a warrant for confirmation of the will.
Sheriff John McCormick also noted that the court has received an application for confirmation, from a different Scottish bank, also purporting to use a power of attorney. In this case, although the deceased was a Scottish resident, the power of attorney nominated employees of a bank registered in London and stated that it was governed by English law. That confirmation was also rejected.
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Published on our website on Apr.10, 2015