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MARK SHENKEN AND ANOTHER AGAINST PHOENIX LIFE LIMITED


OUTER HOUSE, COURT OF SESSION

[2015] CSOH 96

CA202/14

OPINION OF LORD TYRE

In the cause

MARK SHENKEN and ANOTHER

Pursuers;

against

PHOENIX LIFE LIMITED

Defenders:

Pursuers:  Davies;  TLT LLP

Defenders:  T Young;  Eversheds LLP

17 July 2015

Introduction

[1]        This action concerns entitlement to receive the proceeds of two life assurance policies issued in 1985 and held in trusts created by Mr Arthur Gerald Pinder and his then wife Mrs Betty Myra Pinder.  Both trusters are now deceased and the sums assured under the policies became payable on the second death, being that of Mr Pinder on 17 November 2010.  The defenders have made payment under both policies to a Mr Howard Schwartz, an attorney in the state of Florida, United States of America, who was personal representative of both Mr Pinder and his late second wife, Mrs Catherine Renee Pinder.  The sums paid amounted to £305,998.57.   The pursuers claim that Mr Schwartz had no title to receive the proceeds of either policy, and seek payment from the defenders of a sum said to represent the value of the policies at the time when the present action was raised.

[2]        I heard a debate of certain specific issues, and I am grateful to counsel for their thorough research and careful analysis.  The principal issues debated were:

(i)  Did Mr Schwarz have title to receive the proceeds of Mr Pinder’s policy (Issue 1)?

(ii)  Do the pursuers have title to sue in the present action for the proceeds of Mrs Betty Pinder’s policy (Issue 6)?

[3]        I should note at the outset that correspondence over many years between the defenders and various parties, lodged in process and referred to at length in counsel’s submissions, demonstrates a great deal of past confusion and misunderstanding on the part of all concerned, including the defenders, regarding the existence of a separate trust of which Mrs Betty Pinder was truster, and of the correct identity of the beneficiaries of Mr Pinder’s trust.  I do not intend to rehearse the full history of errors and mistaken assumptions but will instead narrate the facts, so far as relevant to the issues debated, as they appear to be with the benefit of current knowledge.

 

The terms of the trusts

 [4]       The trusts are in identical terms, save for the name of the proposer.  Each contains a request for a life assurance policy consisting of an investment bond to be issued by the Crescent Life Assurance Company Limited (whose business has since been transferred to the defenders), to be held on trust for the joint lives of Mr Pinder and Mrs Betty Pinder.  The trustees are stated to be Mr Pinder, Mrs Betty Pinder, and Mr Frank Davidson (a Glasgow solicitor) “…or other the Trustee or Trustees for the time being of the Policy”.  In terms of Clause 2, the beneficiaries are stated to be:

“…all or any one or more exclusively of the other or others of [Mr Pinder, Mrs Betty Pinder, and their three children Maureen Pinder or Grant, Michelle Pinder or Shenken, and Simone Pinder or Walport] in such shares and proportions and upon such trusts and with and subject to such powers and provisions whatsoever and at such time as the Trustees (being at least two in number including at least one Trustee who takes no personal benefit or a Trust Corporation) may by deed or deeds revocable or irrevocable appoint provided that no such appointment may be made or revoked on or after the second anniversary of my death.”

 

Clause 3 then states:

“In default of and until and subject to any such appointment under the provisions of Clause 2 above the Trustees shall hold the Trust Fund and the income thereof for my said children in equal shares absolutely.”

 

[5]        There follow a number of provisions entitled “Standard Trust Powers and Provisions” of which the following are significant for present purposes:

  • Condition (1) reserves the power of appointing new or additional trustees to the truster during his/her lifetime, to the exclusion of the trustees’ statutory power to assume trustees.
  • Condition (2) empowers the trustees (being at least two in number) to exclude persons falling within the category of beneficiaries from that category.
  • Condition (5)(c) permits the appointment as a trustee of any person or persons resident in any part of the world, and the administration of the trust to be carried on outside the United Kingdom.
  • Condition (6) provides that the receipt by the trustees for any monies payable under the policy shall be a full and sufficient discharge to the insurer, who shall not be concerned to see the application of any such monies.
  • Condition (8) provides that “The trusts and powers set out above are irrevocable and shall be governed by and construed in accordance with the law of Scotland”.

 

Mr Pinder’s trust: subsequent history

[6]        Over the lifetime of Mr Pinder’s trust, a number of assumptions and resignations of trustees took place.  In 1999, the then trustees assumed Marc Shenken, the first pursuer, and Nicholas Shenken as additional trustees, and Mr Davidson resigned.  In late April 2002, Mrs Betty Pinder died.  In 2005, three partners of Harper MacLeod, solicitors, were assumed as additional trustees.  In December 2008, a further partner of Harper MacLeod and a trustee company associated with that firm were assumed as additional trustees, and one of the Harper MacLeod partners resigned.  In July 2009, Marc Shenken and Nicholas Shenken resigned.  By now Mr Pinder was resident in Florida.  In February 2010, Harold Pinder and Mrs Catherine Pinder, Mr Pinder’s second wife, were assumed and all of the Harper MacLeod partners and the trustee company resigned.  In May 2010, Harold Pinder and Catherine Pinder resigned.  The outcome of all of those changes was that Mr Pinder was left as sole trustee of his own trust.

[7]        On 22 June 2010, Mr Pinder, in his dual capacities of truster and trustee, executed a document entitled a “Deed of Amendment” purporting to alter the beneficiaries of the trust.  This deed stated:

“Clauses 2 and 3 of the Trust Deed shall be amended by the deletion of the names of the beneficiaries written in therein and the following substituted respectively therefor:

‘the beneficiaries from time to time under the Arthur Gerald Pinder Revocable Trust governed by the laws of the State of Florida and established by Trust Agreement dated 15 December 2004’.”

 

It will be recalled, however, that Condition (8) of the trust deed stated that the trusts set out in it were irrevocable. 

[8]        Mr Pinder died in Florida on 17 November 2010.  At the time of his death he remained the sole trustee of his trust.  On 3 December 2010, Mr Howard Schwartz representing Catherine Pinder, reported Mr Pinder’s death to the defenders and intimated that Mrs Pinder wished to “surrender the policies” and collect the proceeds as sole beneficiary.  The defenders replied on 29 December 2010 requesting sight of various documents and enclosing a claim form for completion.  No immediate reply was sent by Mr Schwartz.  On 2 March 2011, letters of administration were granted by Palm Beach County Court, Florida, appointing Catherine Pinder and Mr Schwartz as Mr Pinder’s personal representatives.  Reminders were sent by the defenders to Catherine Pinder at Mr Schwartz’s office address in March and July 2011.  Catherine Pinder, however, died on 14 June 2011.  Mr Schwartz was appointed as her personal representative on 20 July 2011 and intimated her death to the defenders.  In his capacity as Mr Pinder’s personal representative, Mr Schwartz submitted a claim form in respect of both life policies which bears to have been signed and witnessed on 7 May 2011 but is stamped as received by the defenders on 29 July 2011.  The payee of the policy proceeds is stated to be “Estate of Catherine R Pinder” (suggesting that it was in fact submitted after her death), and the form includes a declaration that the original policy documents have been lost or destroyed.  In about August 2011, the defenders made a payment of £305,998.57 to Mr Schwartz, in full settlement of the sum payable under both policies.

[9]        In about March 2013, proceedings were raised in the Court of Session by the three beneficiaries named in the trust deed for reduction of the 2010 Deed of Amendment on the ground that it was void as the trustees had no power to substitute new beneficiaries.  The action was not defended and decree of reduction was granted on 7 June 2013.  The three beneficiaries also presented a petition to the court under section 22 of the Trusts (Scotland) Act 1921 for appointment of trustees to Mr Pinder’s trust.  No answers were lodged and on 2 July 2013 an interlocutor was pronounced appointing two partners of Giusti Martin, solicitors, as trustees.  In November 2013 the pursuers were assumed as trustees and the Giusti Martin partners resigned.

[10]      Finally in relation to Mr Pinder’s trust, it should be noted that the trust assets consisted of more than the Crescent policy, as certain private company shares were transferred to the trust in 1985, shortly after its creation.

 

Mrs Betty Pinder’s trust: subsequent history

[11]      The history of Mrs Betty Pinder’s trust can be stated more briefly because everyone concerned appears to have lost sight at an early stage of the fact that one of the two life policies was subject to the terms of a trust of which she, and not Mr Pinder, was the truster.  As with Mr Pinder’s trust, the then trustees assumed Marc Shenken, the first pursuer, and Nicholas Shenken as additional trustees in 1999, and Mr Davidson resigned.  Following Mrs Betty Pinder’s death in 2002, no further changes in personnel occurred until very recently.  Correspondence over the years between the defenders on the one hand and Mr Pinder and his various representatives on the other referred to both policies as if they were held in Mr Pinder’s trust.  It appears that the true situation only came to light in February 2015, after the present action had been raised.  The defenders seem to have found among their files the trust deed for Mrs Betty Pinder’s trust and relative policy documents, and also the two 1999 deeds of assumption.  The existence of these documents was intimated to the pursuers.  By Deed of Assumption and Minute of Resignation dated 10, 13 and 16 March 2015, the second pursuer was assumed as a trustee and Nicholas Shenken resigned.

[12]      The present action was raised by the pursuers in 2014 in their capacity as trustees of Mr Pinder’s trust, and transferred to the commercial roll on 16 October 2014.  Following the re-discovery of the separate existence of Mrs Betty Pinder’s trust and the execution of the Deed of Assumption and Minute of Resignation mentioned above, the pursuers sought and were granted leave to amend the summons to add a designation to the effect that they now also sue as trustees of Mrs Betty Pinder’s trust, with separate conclusions for each of the two policies.

 

Issue 1: Did Mr Schwartz have title, in his capacity as personal representative of Mr Pinder, to receive the proceeds of the policy in Mr Pinder’s trust?

[13]      The defenders assert that they have extinguished their liability under the policy held in Mr Pinder’s trust by making payment to Mr Schwartz in 2011.  The first issue for determination is whether Mr Schwartz had title, in his capacity as Mr Pinder’s personal representative, to receive the proceeds of the policy in Mr Pinder’s trust.  If that question is answered in the affirmative, certain subsidiary questions arise regarding the capacity in which Mr Schwartz in fact claimed and received payment from the defenders.

[14]      I begin by noting certain matters of private international law with regard to which the parties are not in dispute.  The life policy is properly characterised as incorporeal moveable property situated in Scotland.  It is common ground that although Mr Pinder appears to have died domiciled in Florida, the administration of any estate in Scotland owned by him at death is governed by Scots law as lex fori: see Scottish National Orchestra Society Ltd v Thomson’s Exr 1969 SLT 325, Lord Robertson at 327-8; Anton, Private International Law (3rd ed, 2011), para 23.47.  Where a deceased person owning moveable property in Scotland appoints a foreign executor, the procedure, at least so far as concerns property held by the deceased in his private patrimony and not as a trustee, is regulated by section 11 of the Revenue Act 1884 (as amended ), which provides as follows:

“Notwithstanding any provision to the contrary contained in any local or private Act of Parliament, the production of a grant of representation from a court in the United Kingdom by probate or letters of administration or confirmation shall be necessary to establish the right to recover or receive any part of the personal estate and effects of any deceased person situated in the United Kingdom.

 

Provided that where a policy of life assurance has been effected with any insurance company by a person who shall die domiciled elsewhere than in the United Kingdom, the production of a grant of representation from a court in the United Kingdom shall not be necessary to establish the right to receive the money payable in respect of such policy.”

 

In Haas v Atlas Assurance Co Ltd [1913] 2 KB 209, Scrutton J observed that the purpose of the first paragraph of section 11 was to protect the revenue by securing that probate duty should be paid, but that the purpose of the proviso, as amended in 1889, was to protect the interests of English (sic) insurance companies from the risk of being rendered uncompetitive by a need for representatives of deceased policy holders resident abroad to obtain probate or confirmation in the United Kingdom in order to receive the policy proceeds.

[15]      It is also common ground that after the death of Mr Pinder, his trust had no trustees and was what is referred to as a lapsed trust.  There are three possible solutions to the problem of a lapsed trust; whichever is most appropriate will depend upon the stage reached in the administration of the trust.  They are, briefly, as follows:

(i)  Under section 6 of the Executors (Scotland) Act 1900, the executor of the last surviving trustee may (but need not) confirm to the trust property in order to transfer it to persons legally authorised to carry on the trust administration or, alternatively, to make it over directly to the beneficiaries entitled to it.  In order to take advantage of this provision, a note must be appended to the inventory of the deceased’s personal estate given up for confirmation by the executor.

(ii)  Under section 22 of the Trusts (Scotland) Act 1921, any party having an interest in the trust estate may apply to the Court of Session or the sheriff court for appointment of a trustee or trustees.  I noted earlier that such an application was indeed made by the beneficiaries in this case and granted by the court in 2013.

(iii)  Under section 24 of the Trusts (Scotland) Act 1921, a beneficiary absolutely entitled to any property held in a lapsed trust may apply to the Court of Session or the sheriff court for authority to complete title to the property in his own name.

[16]      A potential practical difficulty with the first of these three solutions is noted in Currie, Confirmation of Executors (9th ed, 2011) at para 16-04.  Before section 6 of the 1900 Act can be utilised, the deceased must have had estate in Scotland to which the note dealing with lapsed trust property may be appended.  If the deceased had no such property, the practice is to report – and confirm to – estate in Scotland which may be fictitious and of nominal value, and to append the note of trust property to that.  (I observe in passing that this sort of ad hoc problem-solving does little credit to the law and practice of administration of estates in Scotland, which all too often gives the impression of being done in a particular way for no better reason than because that is how it has always been done.  One is tempted to suggest that it is time, as the Scottish Law Commission have attempted in the past, to consider rationalising and modernising the statutory procedure for obtaining confirmation in Scotland.)

 


Argument for the defenders

[17]      Counsel for the defenders took as an uncontroversial starting point the proposition that if the policy had been held by Mr Pinder in his own right and not as trustee, there could be no dispute about Mr Schwartz’s entitlement, as his personal representative, to be paid the proceeds without any need to obtain confirmation in Scotland.  It was submitted that it made no difference that the policy was held in trust.  As a matter of principle, property rights must always be vested in some person (dominium non potest esse in pendent).  A duly appointed personal representative has title to maintain a personal claim of the deceased trustee, albeit that he would be bound to make over the trust property to a newly-appointed trustee or beneficiary upon whom a right is conferred by one of the statutory provisions above.  In the meantime, title must lie in the estate of either the truster or the trustee; in the present case it did not matter which.  Implicit in the pursuers’ argument was the proposition that, notwithstanding the terms of the proviso to section 11 of the Revenue Act 1884, Scots law mandated that one of the statutory remedies mentioned above had to be used before a foreign executor could obtain an active title to the policy.  There was no authority to support such a proposition.  The various procedures were self-evidently not mandatory and did not supplant or modify general rules of private international law.  They were not necessarily the only remedies available; procedures developed in the 19th century case law might still survive.  Reference was made in particular to Kirkpatrick v Innes (1830) 4 W&S 48.  Scots law recognised the title of a foreign executor to grant a good discharge of debts owed to the deceased in general and life policies in particular, and there was no logical basis for drawing a distinction in this regard between property owned in his own right by a deceased who has died abroad and property owned by him in a fiduciary capacity.  Nor were there any practical reasons to make such a distinction.  A beneficiary of a lapsed trust was in no worse position simply because the executor of the last trustee was foreign; the statutory remedies were available to put someone in place to fulfil the trust purposes. 

 

Argument for the pursuers

[18]      On behalf of the pursuers it was submitted that Mr Schwartz had had no title to receive the policy proceeds.  The trust property did not “belong to” Mr Pinder in the sense used in section 36(2) of the Succession (Scotland) Act 1964 and was not therefore property falling within his estate which would vest in his executor on confirmation.  After his death as sole trustee there was no-one in whom the trust property vested automatically.  One of the three statutory remedies had to be followed in order to obtain title.  It would have been possible for Mr Schwartz to make up title to the trust property by utilising section 6 of the 1900 Act (including the “fictitious estate” procedure), but he had not done so.  Section 11 of the 1884 Act did not assist the defenders because Mr Pinder had no beneficial interest in the trust property, and accordingly it was still necessary for someone to make up title to it.

 

Decision

[19]      In my opinion, Mr Schwartz did not have title, in any capacity, to receive the proceeds of the policy settled in Mr Pinder’s trust.  As is common ground, the applicable law in determining what procedure required to be adopted in order to clothe Mr Schwartz with an active title to receive and distribute the policy proceeds is Scots law as lex situs.  The general rule is that in order to obtain an active title to intromit with estate in Scotland, the claimant must be confirmed as executor by a decree of the appropriate court in Scotland (Anton, op cit, para 23.19).  So far as foreign personal representatives are concerned, the position is governed by section 11 of the 1884 Act, the first part of which makes clear that confirmation (or the equivalent in another UK jurisdiction) is necessary to establish a right to receive any of the deceased’s moveable property situated in the United Kingdom.  By way of exception, confirmation is not necessary to establish the right to receive money payable under a life assurance policy.  The question is whether this proviso applies not only where entitlement to payment of the policy proceeds forms part of the deceased’s private patrimony but also where it is held in a trust of which the deceased had been the sole surviving trustee.

[20]      In my opinion section 11, including the proviso, has no application to trust property.  I see no reason why it should.  The peculiarity of the present case is that Mr Pinder was the sole surviving trustee of his own trust.  In the ordinary case where one of a number of trustees dies, the principle of survivorship operates in favour of the surviving trustees, and the deceased trustee is simply “blotted out of the title” (Menzies, Trustees (2nd ed, 1913), para 147).  No question arises of the deceased trustee’s executor confirming to the trust property.  Accordingly the reference in section 11 to “the personal estate and effects of any deceased person” must in my opinion be read as referring to personal, i.e. moveable property owned by the deceased in his own right – or, to put it another way, forming part of his private patrimony – and not to property to which he held title in a fiduciary capacity. 

[21]      The most obvious and convincing reason why the proviso to section 11 should not be construed as extending to property held in a lapsed trust of which the deceased had been sole trustee is that it would put a foreign personal representative in a favourable position when compared to that of an executor resident in Scotland and appointed by a Scottish-domiciled testator: the former would not require to confirm to the life policy whereas the latter would be obliged to confirm in accordance with the procedure specified in section 6 of the 1900 Act, using the “fictitious estate” route if necessary.  That would be absurd, and reinforces my view that section 11 was not intended to override the existing law (including statutory predecessors of the Trusts (Scotland) Act 1921 provisions that I have mentioned) as to means by which an active title might be obtained to property held in a trust with no remaining trustees.  It was, as Scrutton J explained in Haas v Atlas Assurance Co Ltd, enacted for the entirely different purpose of protection of the UK revenue.  For these reasons I consider that section 11 was of no assistance to Mr Schwartz as regards title to receive the policy proceeds held in trust, and is equally of no assistance to the defenders in responding to the pursuers’ claim regarding Mr Pinder’s trust.

[22]      Nor, in my view, is the 19th century case law of any help to the defenders.  It was contended on their behalf that because none of the three methods described earlier of obtaining title to intromit with property in a lapsed trust is obligatory, the procedures utilised prior to enactment of section 6 of the 1900 Act remained available.  For my part, I doubt whether any non-statutory pre-1900 practice of the court which was inconsistent with the requirements of section 6 could now be used.  I need not decide the point, however, because the cases founded upon by the defenders, in particular Kirkpatrick v Innes (above) and Fernie v Fernie (1893) 1 SLT 108, are distinguishable from the present one in respect that in those cases the person claiming title to intromit with the trust property had been confirmed as the deceased trustee’s executor by a Scottish court, and the question was not whether such confirmation was necessary but rather whether, having been obtained, it afforded sufficient entitlement to sue for monies owed to the trust. 

[23]      What I have said so far applies only to the property, including the life policy, held in Mr Pinder’s trust.  For the avoidance of any doubt, however, I should observe that on the basis of the factual information presently before the court, Mr Schwartz had no title, in any capacity, to receive the proceeds of the policy held in Mrs Betty Pinder’s trust.  In the light of the re-discovery of the original trust deed, now reflected in the pursuers’ amended pleadings, it appears that as at the date of Mr Pinder’s death, Mrs Betty Pinder’s trust had two surviving trustees in whom the trust property then vested by survivorship.  If that is correct, Mr Pinder’s personal representative would have had no entitlement to confirm to it, and neither section 11 of the 1884 Act nor section 6 of the 1900 Act would have had any relevance or offered any assistance.

[24]      The second and third issues debated before me were (i) whether it was relevant to determine whether Mr Schwartz claimed and received payment from the defenders in his capacity as Mr Pinder’s personal representative or as Catherine Pinder’s personal representative, and (ii) if so, in which capacity he did claim and receive payment.  My decision on the first issue renders these questions academic.  For the sake of completeness, however, I should say that if I had had to decide the second issue, I would not have regarded it as relevant to examine the capacity in which Mr Schwartz purported to claim and receive payment.  From the perspective of the defenders as debtor under the policy, Mr Schwartz was a single, indivisible, legal person.  Either he had title, as a matter of law, to receive the policy proceeds or he did not.  If he had had title (which in my opinion he did not), then it would not have mattered, in my view, if he had purported to claim payment in the wrong capacity; the defenders would still have paid the correct person and their liability would have been extinguished.  It was, of course, important from Mr Schwartz’s perspective to be clear as to the capacity in which he received payment, as this was likely to be critical in ensuring that he in turn made payment to the correct beneficiary.  But that is not a matter arising in the present case.  As to the third issue (had I regarded it as material), standing the confused state of the correspondence which I have not attempted to set out fully, I would not have been minded to decide it until after proof.

 

Issue 6: Do the pursuers have title to sue in the present action for the proceeds of Mrs Betty Pinder’s policy?

[25]      The second of the principal issues debated was whether the pursuers have, on their own averments, demonstrated title to sue in this action for the proceeds of Mrs Betty Pinder’s policy.  The point arises because it only emerged after the raising of the action that this policy was held in a separate trust whose surviving trustees were the first pursuer and Nicholas Shenken.  The pursuers have sought to address this difficulty by (i) execution of a Deed of Assumption and Minute of Resignation in terms of which the second pursuer was assumed as a trustee and Nicholas Shenken resigned, and (ii) consequential amendment of the pleadings to reflect what now appears to be the correct factual position.

 

Argument for the defenders

[26]      On behalf of the defenders, it was submitted that as the pursuers, on their own averments, did not have title at the commencement of the action to sue for the proceeds of the policy in Mrs Betty Pinder’s Trust, the action in so far as that policy was concerned was incompetent and fell to be dismissed.  An action commenced without title to sue is a nullity: Bentley v Macfarlane 1964 SC 76, Lord President Clyde at 79.  As regards trustees, all or a qualified majority must sue; one of two trustees does not have title to raise an action on his own (except in the situation, not applicable here, where the defenders are other trustees): Neilson v Mossend Iron Co (1885) 12R 499, Lord President Inglis at 525.  At the time of commencement of the action, the trustees were the first pursuer and Nicholas Shenken.  It was not contended on behalf of the pursuer that Nicholas Shenken had authorised the action; the reality appeared to be that neither he nor the first pursuer had been aware that he was still a trustee.  The pursuers did not therefore have title to sue when the action was raised.  That lack of title could not be cured by subsequent amendment. 

 

Argument for the pursuers

[27]      On behalf of the pursuers, it was acknowledged that a pursuer must have title to sue at the time when an action was raised.  In the present case the pursuers did have title so far as Mr Pinder’s trust was concerned, and so the proceedings are competent.   At all material times, Mrs Betty Pinder’s trustees had title to sue in respect of the policy.  All that was now being done was to add them as pursuers in the action, in recognition of the re-discovery by the defenders of the fact that the policy was held in a separate trust.  Given the close connection between the pursuers’ claims in respect of the two policies, it would cause unnecessary duplication and expense to require them to pursue two separate actions.

 

Decision

[28]      As initially framed, the present action was for payment to the pursuers of the proceeds of a policy held in Mr Pinder’s trust and (as it now appears) a policy held in Mrs Betty Pinder’s trust.  So far as the latter policy is concerned, the persons with title to sue were the trustees then in office, i.e. the first pursuer and Nicholas Shenken.  It is clear from Neilson v Mossend Iron Co that the first pursuer had no title to raise the action on his own; nor, at that time, did the second pursuer contribute anything to title, as she was not then a trustee.  Accordingly, when the present action was raised, no competent claim was made in respect of the proceeds of the policy settled by Mrs Betty Pinder.

[29]      It is not, however, suggested that the present action was incompetent as regards the claim for the proceeds of the policy settled by Mr Pinder.  The action was not a “nullity”, and for this reason the observations of Lord President Clyde in Bentley v Macfarlane are not directly in point.  In these circumstances, I am of the view that the defect in relation to Mrs Betty Pinder’s trust was not incurable.  No question of time bar arises in the circumstances of this case.  By the time of the amendment of the pursuers’ pleadings, the first and second pursuers were the whole trustees of Mrs Betty Pinder’s trust.  They had title to sue for payment of the policy proceeds.  In these circumstances, they sought and were granted leave to amend the grounds of their action against the defenders by adding to their existing competent claim for payment of the proceeds of Mr Pinder’s policy a new competent claim for payment of the proceeds of Mrs Betty Pinder’s policy.  I prefer this analysis to characterisation of the amendment as the addition of a pursuer.  The second pursuer was always a party to the action in relation to Mr Pinder’s policy; the practical effect of the amendment was to introduce a competent claim by both pursuers in relation to Mrs Betty Pinder’s policy, which claim had not previously been competently stated.  In my view that is quite a different situation from an attempt to cure initial nullity by a subsequent assignation.  Rather than raising an issue of competency, it merely raises the question whether the court regards it as convenient and in the interests of justice to allow the two claims to be pursued in one action or, alternatively, to require a separate action to be raised.  I am in no doubt that the two claims are so closely linked with regard to both factual background and legal analysis that it is appropriate for them to proceed together in a single action. 

 

Disposal

[30]      I have dealt in this opinion with the matters debated; further issues may remain between the parties.  In accordance with counsel’s request, I shall put the case out by order to be addressed on the terms of any interlocutor to be pronounced at this stage, and on further procedure.  Questions of expenses are reserved.