Conditio Si Institutis Decesserit Flashcards
Effect of the rule
Children of predecessor legatee are implied conditional institutes who take priority over others
Why just descendants originally?
Idea that desire of parent to give property to children was so strong that it could not be ignored
Natural intimacy of parent not to leave descendants portionless so strong that law assumes that such a result could not have been intended (Devil’s Trs v Breen)
What case increased the scope of the rule to all descendants?
Blair’s Ex v Taylor
What case held that the rule could be applied to the issue of nephews and nieces?
Hall v Hall
What is the test for determining whether nephews and nieces’ children can inherit via the rule?
Was the deceased in loco parentis to their nephew / niece (Bogie’s Trs)
Not brothers and sisters though!!
Fact that he had made such a settlement in their favour similar to what parent might have made meant he was in loco parentis
Exceptions to the rule
Testator meant to overlook legatee’s children (not by destination over) must be express
Made separate provision for children of institute (they haven’t been overlooked)
Parent is not instituted. Must be dead
What happens where there is implied accretion and conditio can apply?
Normally accretion would apply - get 1/2 each or other gets if one dies. But with conditio, children of person who died can take
What happens where there is an express destination over?
To A and B equally or the survivor. Conditio wins - see Devlin’s Trs v Breen. 1/2 and children take other half
Fact that there is a destination over is no obstacle
Advantages of the conditio
Better than the gift lapsing
Likely to give effect to testator’s intention - whole point
Might not consider their child will die so won’t expressly state
If parent survived, would get from them after anyway
What is it?
Even if no express provision made for contingency of beneficiary’s predecease, testator would not have intended the legacy to lapse but rather that his or her children should take the legacy instead
Disadvantages of the conditio
Presumption may not be true
Tricky to decide who it should and should not apply to
Computer systems automatically put in anti lapse provision, maybe not that necessary
What do SLC recommend?
Rule retained but slight restrictions
Extend to other classes of relatives e.g. Collaterals, stepchildren
Difficult to justify drawing a line at any point beyond the individual’s own descendants
Should not apply where express destination over - testator has said who he wants it to go to in the event of the institute dying
Abolish rule and replace with statute
South Africa
Taken straight from Roman law
Might or might not be a lapse of the testator’s memory
Much wider e.g. Any benefit not just class
Hall v Hall
Did not apply in favour of testator’s siblings but children of nephew and niece
Magistrates of Montrose
3 children, 2 of whom had died. One left child. Half each because of conditio
Remoter the relation the more likely it is to be a personal gift rather than financial provision
