This is a Note by Sheriff A G McCulloch in the matter of a petition for the appointment as executor dative by Dennis Murray.

Mr Murray is one of four children of the deceased.  The widow of the deceased was made the subject of a guardianship order.  Mr Murray was appointed as her guardian.

As the widow’s prior rights would exhaust the whole estate of the deceased, the normal procedure would have been for the widow or her guardian to be appointed as executor dative.   However, the guardianship order in this case unusually did not contain a power for the guardian to make an application for appointment as executor dative.

The Sheriff explained in his Note that the problem here was the current commissary practice.   The current practice is to treat the surviving spouse whose prior rights exhaust the whole intestate estate as the sole person with the right to be appointed executor.   The Sheriff noted that this appeared “to be a misunderstanding, or misreading, of the provisions of section 9(4) [of the Succession (Scotland) Act.]“

The Sheriff’s Note which can be found here outlines the relevant part of  section 9(4).

The Sheriff held that “… those other than the surviving spouse may seek in these circumstances to be decerned executor dative.”