Gordon's Trustees, Petitioners
| Jurisdiction | Scotland |
| Judgment Date | 21 December 1989 |
| Docket Number | No. 18. |
| Date | 21 December 1989 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Practice — Trust — Petition — Whether separate representation by counsel required where possible competing parties in the succession to trust estate all sharing same solicitor.
Trust — Trustees — Petition for directions — Distribution of estate — Possible competing parties separately represented by counsel but all having the same solicitor — Whether competent for court to decide to whom trust estate should devolve in these circumstances.
A body of trustees petitioned the Court of Session seeking the opinion of the court on a point of difficulty which had arisen as to the terms of one of the testamentary writings of the deceased trustor. A decision on this point would have the effect of settling the succession to the trust estate amongst a body of competing parties. These parties all shared the same solicitor and, on summar roll, were all represented by the same counsel. In these circumstances a question arose as to the competency of the applications.
Held (1) that the courts might deal with comparatively simple questions of investment, distribution, management or administration, or relating to the powers or duties of trustees, even although only the trustees themselves were represented at the bar; but (2) that the court, in this case, was being asked to decide to whom the capital of the trust estate was to be paid and, where the question was of such fundamental importance as to the rights of the parties in the trust estate, the ordinary rules about representation had to be applied; and applicationcontinued for separate representation to be effected.
Dicta of Lord President Clyde in Robertson and Others, Pets.1962 S.C. 196 at pp. 203-204 distinguished.
Messrs Coutts & Co. (the trustees and executors on the estate of the late Lt. Col. Philip James Gordon) applied to the Court of Session by way of petition for directions seeking the opinion of the court on a point of difficulty which had arisen as to the terms of one of the testamentary writings of the deceased trustor.
The facts and circumstances appear adequately from the opinion of the court.
The petition called in summar roll on 16th December 1988 before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord McDonald and Lord Allanbridge at which the hearing was continued in order to enable the petitioners to lodge a minute of amendment. The petition thereafter called in summar roll on 21st December 1988 before the First Division, comprising the Lord President (Hope), Lord Brand and Lord Cowie at which their Lordships indicated that the case should proceed as a petition for directions but that no further procedure could take place until competing interested parties were represented separately by counsel and solicitors. Eo die, their Lordships issued an opinion, which was delivered by the Lord President (Hope), setting out the reasons for their Lordships' decision.
Opinion Of The Court.—In this application, which takes the form of a petition for directions, the trustees and executors of the late Lt. Col. Philip James Gordon seek the opinion of the court on a point of difficulty which has arisen as to the terms of one of the testamentary writings of the deceased, referred to hereafter as the testator.
The testator left a will dated 16th March 1909, together with four relative codicils dated 23rd January 1913, 15th October 1914, 17th October 1914 and 7th May 1918, and he died on 12th January 1925. He was survived by his widow Mrs Edith Harriet Catterall or Gordon who died in 1934 and by his only child, a daughter, Mrs Phyllis...
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