Conditions For Succession Flashcards
4 legally implied preconditions for inheritance
- De Cuius must have owned property at date and be capable of transmission
- Must have died to be deemed to have died
- Beneficiary must have survived de cuius
- Beneficiary must not be excluded by precondition implied by law of provision of de cuius
Until 4 preconditions are met, beneficiary has
A mere hope of succession
Establishing death of the deceased; disappearance can be proved via
Common law
Presumption of Death (S) Act 1977
Onus of proof lies with claimant
Death certificate is also sufficient evidence
Bankton, Institutes 2,6,31
Rebuttable presumption that life continues up to the extreme limits of human age
100 years old
Presumption of Death (S) Act 1977
Where a person who is missing is thought to have died
Or
Has not been alive for a period of 7 years
A person with interest can raise an action in the court for a declarator of death.
When a person is thought to be dead due to circumstances eg
Bomb explosion
Under the 1977 Act:
A declarator can be sought and granted immediately is death established on the balance of probabilities
Effect of a declarator of death is
Conclusive for all purposes and succession rights wills arise immediately in the estate of the relevant person
Survivorship is usually easy to prove
By identifying self
Or
With rangers to non-natural persons eg companies, equivalent is to prove company still exists
Period of survivorship?
No minimum period
But
Many modern wills require min period eg 30 days before vesting
Previously under the
Successions (S) Act 1964 s.31
There was a presumption than in common calamities
If those who die are married, and it is unclear who survived whom, they will be presumed to have died at the same time
If not married, older will be presumed to have predeceased younger
Lamb
V
Lord advocate
S31 1964 Act provided presumptions only where there was uncertainty to survivorship and that survivance was proved on the balance of probabilities
Re beare
English case
Couple killed when car overturned in ditch
Held that medical evidence was insufficient to reach a conclusion contrary to presumption that elder predeceased younger
No presumptions in Scots law.
Successions (S) Act 2016
Uncertainty of survivorship is treated as failure to survive
Equal division of property of order of deaths uncertain
Where testamentary requirement for survivorship, persona treated has having failed to meet it
Elliot
V
Joicey
A child unborn at date of death is treated as if it were already born provided it is alive and provision is to its benefit
Can invalidate will
Rule cannot be invoked in the interests of a third party, only for benefit of child
RofW (S) Act 1995
Person involved in the preparation and execution of a will on behalf of blind or illiterate person,
Is not entitled to take benefits under it
Will will be invalid to extend it confers benefits on the pre-mentioned
