Peter Alexander Hope Matthews v. Hunter and Robertson Limited [2007] CSOH 88

Procedure Roll:- The pursuer in this action was the executor nominate of Isabella Urquhart who died on 22 October 2005. As a firm of solicitors the defenders succeeded to the liabilities of the former partnership of Hunter & Robertson. In this action the pursuer sought damages as executor of the deceased, and contended that he had suffered loss and damage as a result of the negligence of the defenders' predecessors'. In 1975, the deceased and Mr Urquhart decided to separate and they agreed that the deceased would purchase Mr Urquhart's one half share in their home. In the disposition prepared by the defenders' predecessors in terms of the dispositive clause, Mr Urquhart disponed his "whole right, title and interest, present and future, in and to the said one half share pro indiviso of the said subjects". No steps were taken to evacuate the survivorship destination in respect of the deceased's one half share of the subjects and no advice was given by the defenders' predecessors to the deceased to the effect that such steps were necessary, if the deceased did not wish her share of the subjects to pass to Mr Urquhart in the event of her death. In consequence of the unevacuated survivorship destination, a one half pro indiviso share of the subjects did not vest in the pursuer, who was appointed the deceased's executor in 2003 following her death, by virtue of sections 14(1) and 36(2)(a) of the Succession (Scotland) Act 1964. As a consequence a one half pro indiviso share of the subjects was transferred directly to Mr Urquhart. In this action the pursuer sought half of the net proceeds after deduction of the costs associated with the sale of the subjects. The defenders denied any negligence. At debate on behalf of the defenders it was submitted that there was an insufficient basis for the pursuers to establish liability on the part of the defenders and challenged the relevancy of the averments that the pursuer had suffered loss.