Legal Definitions - transference

In Scots law, transference refers to the legal process of formally substituting a new representative for a person who has died while they were involved in an ongoing lawsuit. This new representative, typically an executor or administrator of the deceased's estate, steps into the deceased's legal position to continue the legal action.

The purpose of transference is to ensure that a legal dispute does not automatically terminate simply because one of the original parties has passed away. It allows the pending case to proceed to a resolution, ensuring that the rights and obligations of the deceased's estate can still be addressed by the court.

• Example 1: Deceased Plaintiff

  Imagine Mr. Stewart was suing a car manufacturer for damages after a defective part in his vehicle caused an accident. While the case was still making its way through the Scottish courts, Mr. Stewart unexpectedly passed away. To prevent the lawsuit from ending, his daughter, who is the executor of his estate, would apply for transference. If granted by the court, she would then be formally substituted as the plaintiff, allowing her to continue the legal action against the car manufacturer on behalf of her father's estate, seeking the compensation he originally pursued.

  This illustrates transference by showing how a deceased plaintiff's estate can continue a "pending action" through a new representative.

• Example 2: Deceased Defendant

  Consider a situation where Ms. Fraser was being sued by a former business partner for breach of contract. Before the trial concluded, Ms. Fraser passed away. To ensure the breach of contract claim could still be resolved, the former business partner's legal team would petition the court for transference. The court would then substitute Ms. Fraser's executor or the trustees of her estate as the new defendant, allowing the lawsuit to proceed against her estate to determine liability for the alleged breach.

  Here, transference allows a lawsuit against a deceased defendant to continue by replacing them with a representative of their estate.

• Example 3: Multi-Party Litigation

  Suppose a group of homeowners in Edinburgh had initiated a class action lawsuit against a property developer for significant structural defects in their new homes. One of the lead homeowners, Mrs. MacLeod, who had a substantial claim for damages, died during the discovery phase of the litigation. Her husband, as the appointed administrator of her estate, would apply for transference. The court would then allow him to be substituted as a party to the ongoing lawsuit, representing Mrs. MacLeod's specific interests and claims within the larger collective action against the developer, ensuring her estate's right to compensation is preserved.

  This example demonstrates transference in a more complex scenario, where a deceased party in a multi-party "pending action" is replaced to ensure their individual claims can still be pursued.