This case concerns a matter that had not previously come before the Scottish courts.

The facts of this case were not in dispute and were set out in a joint minute agreed by the parties.   Miss Isabella Gordon granted a Power of Attorney in 1996 in favour of her solicitor.  This included the power to sell any part of her estate.  In 1997 she executed a Will in which she bequeathed her home in Stonehaven to John Turner.  In 2001 Miss Gordon became incapable of managing her own affairs and moved into a nursing home.  Her Attorney sold her home later on that year.   Miss Gordon died in 2008.

The question for Lord Tyre was whether the legacy of the house was “adeemed” or was it “converted”, so that the beneficiary is entitled to a sum equivalent to the proceeds of sale of the house.

“Where the subject matter of a bequest (whether heritable or moveable) has been disposed of by the testator so that it no longer forms part of his or her estate at the date of death, the bequest or legacy is said to have been adeemed and therefore cannot take effect.”

Lord Tyre also made the following point: “In contrast to the doctrine of conversation, the intention of the testator is not regarded as relevant to ademption.”

The crucial point here appeared to be that the parties agreed the following:  “The sale of the house by [the attorney] was a prudent act of administration, having regard to the disadvantage in leaving the house empty with attendant maintenance costs.  It was not a necessary act, not having been an act which [Miss Gordon] as principal, had she been sui juris ["full legal capacity"], would have been constrained to effect, there being sufficient other funds available to meet the costs of [Miss Gordon's] care.”

Lord Tyre held that as the sale of the house by the Attorney was a prudent act of administration rather than a necessary act to fund Miss Gordon’s care, the legacy was not adeemed by the sale.  John Turner was therefore “entitled to receive a cash equivalent to the proceeds of sale of the house.”  In addition he is entitled “to receive a sum representing the fruits of these proceeds during the period since the date of receipt of the sale proceeds.”

One last point on expenses.  Lord Tyre agreed that both parties were entitled to their expenses from the executry estate.

Thanks to Gillian Campbell of Biggart Baillie and Nicola Smith of Cairn Legal for tweeting about this case.

The case report can be found here.