Actions of count, reckoning and payment in Scotland

Dylan Mitchell and Olivia Dent, solicitors in the Litigation team at Balfour+Manson LLP, explain actions of count, reckoning and payment in Scotland, an important yet widely underused remedy in Scots trust and executry practice.

What is an action of count, reckoning and payment?

An important yet widely underused remedy in Scots trust and executry practice is an action of count, reckoning and payment (sometimes referred to, less accurately, as an action for accounting).

Similar to the English equitable remedy of an ‘order to account’, an action of count, reckoning and payment can be used by beneficiaries of a trust or estate in Scotland to obtain crucial information needed to establish what, if anything, is due to them.

Without knowing what the trustees have received and what they have done with assets, it’s often impossible to determine whether they have acted properly. Beneficiaries frequently grow frustrated when a trustee appears to be failing to administer the trust or estate properly and timeously. Given the relatively high threshold that must be met before Scottish courts will remove an executor or trustee from office, an action of count, reckoning and payment can provide a valuable, though often overlooked, remedy.

The process involves two stages:

Firstly, the pursuer must first establish that the defender has a duty to account.
If this is proven, the court will proceed to the second stage and order the defender to produce an accounting within a specified period. The pursuer may then raise objections to the accounting, to which the defender must respond.

It is well established that trustees owe a duty to provide information to beneficiaries and to account for their intromissions (dealings with estate funds and property). In Scotland, executors - whether appointed by a will or by the court in intestate cases - are a form of trustee and are therefore subject to the same obligations, with certain limited exceptions.

Why is an action of count, reckoning and payment underused?

An action of count, reckoning and payment is unusual in several ways, which may go some way to explaining why it is often avoided.

Absence of formal procedure

There are no specific court rules governing the procedure; instead, it is guided by convention and practice.

No need to prove wrongdoing

The pursuer does not need to establish any wrongdoing by the trustee or executor to compel an accounting. This remedy is unique in that the pursuer is allowed to raise an action without knowing all the facts. In most other legal actions, the pursuer must specify the exact remedy sought and provide evidence to support their case. Here, however, the burden shifts: it is the defender who must account and produce the necessary vouching.

Alternative sum craved

Because the pursuer doesn’t know what is due, they are permitted to claim an alternative (and often inflated) sum should the defender fail to produce an accounting. This acts as a coercive tool to encourage compliance.

No prescription on the duty to account

Under the Prescription and Limitation (Scotland) Act 1973, the trustee’s duty to account does not terminate due to the passage of time (known as prescription in Scotland) - even after the long prescriptive period of 20 years has expired. Trustees should be fully aware that they may be called upon to account for their dealings with the trust at any point in time.

Case Example: Currie v Currie’s Executors [2022] CSIH 58

An illustrative case is Currie v Currie’s Executors. Mr Currie died on 16 January 2015, survived by two daughters - one adopted (the defender) and one biological (the pursuer). His will appointed the defender as sole executor, with his estate to be divided equally between both daughters.

Prior to his death, Mr Currie had granted a Continuing (Financial) and Welfare Power of Attorney, appointing both daughters as attorneys. However, only the defender had exercised her powers. After his death, the pursuer became suspicious when the estate appeared to be worth less than expected. Between July 2014 (when Mr Currie entered a nursing home) and January 2015 (his death), £72,835.36 had been removed from his bank accounts. This included transfers to the defender, as well as spending on flights, toy shops, and other items unlikely to be for Mr Currie’s benefit.

The pursuer raised an action against the defender seeking to compel the defender to:

produce an accounting in her capacity as attorney for the deceased, failing which for payment of the total sum under suspicion
produce a further accounting for her intromissions as executor of the estate

In this case the obligations owed were blurred as the same individual was acting as both attorney in life and executor in death. The defender accepted that she had an obligation to account in her capacity as executor but denied that she had any obligation to account to the pursuer for her intromissions as Attorney.

The Court held that while it was not competent for the pursuer (as a beneficiary) to compel payment from the defender in her capacity as attorney, the defender was obliged to account as executor to the beneficiaries of the estate for the proper administration of the estate. Accordingly, as in this case, a beneficiary who claimed that the executor had not realised all assets due to the estate might competently raise an action calling on the executor to realise and account for their intromissions.

Summary

Whilst an action of count, reckoning sits comfortably as a remedy within the sphere of trust and executry practice, we must remember that it applies more broadly to all fiduciary relationships. As a fiduciary, one must put the interests of the principal served above that of their own and not put themselves in a position where their interests might conflict. As well as trustees and beneficiaries, fiduciary relationships extend to agents and principals, attorneys acting under a power of attorney, partners in business, and company directors.

However, the action of count, reckoning and payment stands as a potent tool in Scots trust and executry law. Its unique procedural flexibility, lack of prescriptive limits, and capacity to shift the burden of effort onto the party with control of information make it especially valuable to beneficiaries seeking transparency and redress.

As demonstrated in Currie v Currie Executors, the remedy remains relevant even in complex fiduciary relationships where roles may overlap or change. Legal practitioners would do well to remain mindful of this remedy - not only as a means of compelling accountability, but also as a reminder of the enduring obligations that apply to trustees and executors in Scotland.

About the author

Dylan Mitchell is a Senior Solicitor and Olivia Dent is a Solicitor in the Litigation team at Balfour+Manson LLP. Dylan handles a variety of contentious matters on behalf of both private individuals and business entities and has particular expertise in advising on disagreements arising from Wills, Trusts and the administration of estates of people who have died. Olivia advises clients on personal injury matters including road traffic accidents, accidents at work and negligent medical procedures.

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Prescription and Limitation (Scotland) Act 1973 (Legislation)

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Publication date

12 May 2025

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.