When does an executor have the right to file a lawsuit on behalf of the estate of a deceased person? This was recently discussed in the matter of Riddell v. Arcus Solutions (Holdings) Ltd. before the Sheriff Court. Whether or not the executor has been formally chosen—either by the decedent in a will or by the Court after the decedent's passing—determines the response.
The pertinent background is rather simple. In July 2018, Mrs. Riddell passed away. She experienced an unrelated workplace injury in February 2018. Mrs. Riddell had no will. As a result, she didn't name any executors herself. As a result, anyone who qualified to be appointed as executor had to ask the court for the position of Executor Dative.
In February 2021, Mr. Riddell's husband filed a lawsuit against her employment. According to the court documents Mr. Riddell filed, he asserted the case in the capacity of Executor Dative. There was little debate regarding Mr. Riddell's eligibility to serve as Executor Dative. The fact that Mr. Riddell had not been confirmed as the executor dative of his wife's estate or received an appointment from the court by the time he brought the action to court, however, became clear over the course of the case. The employers requested that the case be dismissed because Mr. Riddell lacked standing to bring a lawsuit, according to their request (referred to as lacking "title" to sue).
The legal solicitor for Mr. Riddell acknowledged that at the time the lawsuit was brought, he lacked full standing to proceed. However, they contended that Mr. Riddell was the only candidate who qualified to serve as Executor Dative. Therefore, the application to the court was a straightforward administrative action that could be taken throughout the legal proceeding to establish his title. This argument was rejected by the sheriff, who dismissed the case. It didn't matter if the Sheriff didn't agree that Mr. Riddell was the only candidate for the position of Executor Dative. The crucial question was whether Mr. Riddell had been named executor when he brought the action.
Mr. Riddell simply lacked the power to bring the action on behalf of his wife's estate since he had not been named as executor, either by his wife (by her will) or by the court.
Why Mr. Riddell was not named Executor Dative nearly three years after Mrs. Riddell passed away is not evident from the judgement. As a result of the matter being dismissed, it will probably be time-barred and Mr. Riddell won't be able to bring it up again when he is named executor. If Mrs. Riddell had named her husband as her executor nominee in her will, the outcome would probably have been different and the case would have been permitted to go forward.
That type of administrative action may have easily been done throughout the course of the litigation, even though in that scenario Mr. Riddell would still have needed to acquire Confirmation before a final court order was made.
In general, making a will before passing away is the greatest approach to guarantee that the executors of the decedent's estate are chosen by them. Additionally, it relieves the administrative burden of having to approach the court to designate executors and guarantees that an estate is dispersed in accordance with the intentions of the deceased. Without a will, these decisions are up to chance and might not reflect what the departed person would have preferred.