Alistair Moir V. Carolyn Moir As Executrix Nominate Of The Late Hugh Adam Moir+colin Hugh Moir+neil Roderick Allan+edna Murray Moir
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2013] CSOH 177 |
| Court | Court of Session |
| Docket Number | A366/12 |
| Published date | 14 November 2013 |
| Date | 14 November 2013 |
| Year | 2013 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 177 | |
| A366/12 | OPINION OF LORD TYRE in the cause ALISTAIR MOIR Pursuer; against (FIRST) CAROLYN MOIR as Executrix Nominate of the late Hugh Adam Moir and as an individual; (SECOND) COLIN HUGH MOIR as Executor Nominate of the late Hugh Adam Moir and as an individual; (THIRD) NEIL RODERICK ALLAN as Executor Nominate of the late Hugh Adam Moir; and (FOURTH) EDNA MURRAY MOIR Defenders: ________________ |
Pursuer: Beynon; Russel & Aitken LLP
First and Second Defenders: Upton; Simpson & Marwick
Fourth Defender: Logan; Campbell Smith LLP
14 November 2013
Introduction
[1] The late Hugh Adam Moir ("the deceased") died on 29 July 1999. He was survived by his wife, who is the fourth defender in this action, by three children, namely the first and second defenders and Kenneth George Moir, and by the pursuer, who is the son of the fourth defender and was accepted as a child of the family by the deceased. By his will dated 14 November 1990 and registered in the Books of Council and Session on 17 August 1999, the deceased appointed the first, second and third defenders as his executors and trustees. Confirmation in their favour was granted on 19 October 1999. In this action the pursuer seeks (i) reduction of a disposition granted in 2011 by the first, second and third defenders as the executors of the deceased, with the consent of the fourth defender, in favour of the first and second defenders as individuals, of certain areas of ground at Cowie, near Stonehaven, and (ii) an accounting by the executors of their intromissions with the estate of the deceased and payment to the pursuer of the balance found due to him under the deceased's will, failing which, payment of the sum of £50,000. The third defender, who is a retired solicitor, has not entered the process. The case came before me for debate on the procedure roll. The first and second defenders and the fourth defender each sought dismissal of the action.
Factual background
[2] I begin by narrating those matters which do not appear to be in dispute. For some years (the duration is uncertain) a business was carried on by a partnership whose partners were the deceased and his wife, the fourth defender. At some time the second defender was assumed as a partner. The partnership business consisted principally of salmon fishing by net, but also of washing and drying fishing nets at Cowie for a marine laboratory. Accounts of the business were made up at least for the years ending 31 January 1995, 1996 and 1997 respectively, in which the partnership was called "Mr & Mrs H A Moir" and for the period 1 February 1999 to 10 May 1999, in which the partnership was called "Mr & Mrs H A Moir & Mr C Moir".
[3] The deceased's will was in somewhat unusual terms. So far as material to the present proceedings it provided in Clauses Two and Four as follows (for easier reading I have inserted some line breaks not present in the original):
"(Two) In respect of my capital in the business of H & E Moir, Salmon Netters, or any other business in which I may have capital at the time of my death, provided my son Colin Hugh Moir as an individual is ordinarily earning his living from that business at the time of my death I DIRECT my Trustees to retain my share of the capital in the business, should it be agreed with any other partner or partners that the business is not to be sold, and to allow to my said son Colin Hugh Moir as an individual the liferent benefit comprising a half share of the revenue profits and suffering a half share of the revenue losses (or such other share of profits and losses as may be agreed between the said Colin Hugh Moir and any other partner or partners in the business), so long as he continues to work full time in the business, such bequest to be free of Inheritance Tax and the like on my death and free of legal expenses, and my other children shall not be entitled to put any pressure on my son Colin to cease this work, for accounting purposes my Trustees shall suffer their share of any capital expense or loss and have the benefit of any capital gain or profit as the same is worked out on ordinary accounting principles in proportion to their capital in the business, but ignoring Capital Allowances against Income Tax; To assist them in their administration of this capital in the business my Trustees shall have the aftermentioned Trust powers and immunities;
DECLARING however that my said son Colin may disclaim his liferent entitlement at any time, and shall do so at any time when it is decided not to continue the business, either because he no longer wishes to work full time in the business (as to which my Trustees shall be sole judges) or for other proper commercial reasons; And on the said Colin Hugh Moir ceasing to work full time in the business my Trustees shall sell the business and the net free sale proceeds after accounting for expenses and any Capital Gains Tax, or the share thereof pertaining to my Trustees, shall be divided equally among my four children the said Colin Hugh Moir as an individual, ALISTAIR REDFORD MOIR, [address given], the said Carolyn Edna Moir as an individual; and KENNETH GEORGE MOIR, [address given]; And my Trustees shall make such arrangements by way of life insurance or otherwise for any actual or contingent Inheritance Tax or tax of a like kind that may arise as a result of this termination of an interest in possession;
DECLARING that this bequest of capital shall vest at my death and that should any of the said Alistair Redford Moir, Carolyn Edna Moir, or Kenneth George Moir fail to survive me leaving issue their issue shall take their share and if any of them survive me but fail to survive the date of distribution of the proceeds, their Executors shall be entitled to their share;
Further DECLARING that should the my son Colin [sic] still have the benefit of the business at the time of my death my Trustees shall then, so far as within their power, sell the business, and the net sale proceeds shall likewise be divided equally among my four children or their respective Executors, vesting at the date of my death;
Further DECLARING that if my said son Colin Hugh Moir does not survive me, or if he survives me but is no longer (in the opinion of my Trustees) ordinarily earning his living from the said business at the time of my death, the business, or my capital therein, or the proceeds in terms of partnership law, shall form part of the residue of my estate and be disposed of as aftermentioned;
...
(Four) I DIRECT my Trustees to pay and make over the residue of my said means and estate to my said wife as an individual provided that she survives me by thirty days complete and that we are still married to each other at the time of my death;..."
In this opinion I shall refer to the four declarations in Clause Two above as the first, second, third and fourth declarations respectively.
[4] Between 1999 and 2009 the second defender received income from the marine laboratory for washing and drying nets at Cowie. Until 2011 no title to the land was completed by the executors. However, by disposition dated 5 and 10 November 2011 and recorded in the Register of Sasines on 11 November 2011, the first, second and third defenders as executors of the deceased, and with the consent and concurrence of the fourth defender, conveyed the land at Cowie to the first and second defenders equally. The disposition proceeded on the basis of a narrative that the land formed part of the residue of the deceased's estate bequeathed to the fourth defender by the will, and that the fourth defender had requested that the subjects be conveyed to the first and second defenders. No consideration is stated to have been paid.
[5] A summary cause action has been raised by the first and second defenders in Stonehaven Sheriff Court against the present pursuer for recovery of possession of the heritable property disponed in 2011. That action is being defended by the pursuer on grounds which include the contentions upon which he relies in the present proceedings. The sheriff court action has been sisted to enable the pursuer to bring this action in the Court of Session for reduction of the disposition.
The pursuer's averments
[6] The pursuer avers that as at the date of death, the deceased had substantial capital "in and from" the partnership business known originally as Mr and Mrs H A Moir. The assets of that partnership business included the heritable property disponed in 2011. The deceased had, at the date of death, a substantial capital interest in the assets of the partnership including that heritable property. It is averred that between May and December 1999 the second defender carried on business on his own behalf by salmon fishing and by washing and hanging up nets for the marine laboratory. The second defender made use of the heritable property and other assets of the partnership. The second defender is believed to have continued with that business activity until January 2009. As at the date of the deceased's death, the second defender was ordinarily earning his livelihood from the assets, capital or some of the assets or capital of the partnership business including the heritable property. In terms of Clause Two of the will, the second defender became entitled to the liferent interest provided for in that clause. Any opinion by the executors that the second defender was not ordinarily earning his living from "the said business" was "erroneous and of no effect". The second defender's continued use of the heritable property to carry on his business took place with the consent of the fourth defender. His cessation of business and consequent cessation of use of the heritable property in 2009 constituted a renunciation of the liferent. This triggered the pursuer's entitlement in terms of Clause Two of the will to a one-quarter share of the deceased's capital in the partnership. The first, second and...
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