general things to remember for the exam

Question 1

what is ademption?

Answer 1

where the object no longer bellongs to the testator. like a house which has been sold to someone else. transfer of shares in land to someone else.
sometimes it is argued that the real intention was to give the new property (e.g they now bought a new house) to the beneficiary however ademption is a question of fact and not intention.
cobbans exrs v cobban

Question 2

what are the different types of legacies?

Answer 2

pecuniary legacy = certain ammount of money
special legacy = a particular asset e.g book or house or car.
universal legacy = “everything to her”
residual legacy = “everything which remains to her”
demonstrative legacy - money taken from a certain place.

Question 3

what happens if there is a condition on a legacy?

Answer 3

if it is contrary to good morals then it is void.

fraser v rose.

Question 4

what if the testator knew that the object did not bellong to them?
what if he believed it to be his own?

Answer 4

if they knew it was not their own then the executor must buy this property for the beneficiary or pay the value of the object if it cannot be purchased.
if they believed it to be their own then it cannot be claimed. otherwise known as legatium rei alienae

erskine III

Question 5

what is an implied destination over?

Answer 5

there is a legacy to a child and that child predeceases the testator leaving one or more of the grandchildren. there is a presumed destination over to the grandchild or grandchildren. This only APPLIES TO OFFSPRING OF THE TESTATOR.

Question 6

what do you do if a will is worded but not the way in which the testator intended?

Answer 6

you may rectify the will to reflect the intention of the testator. this is seen in the succession Scotland act 2016 section 3 and 4.

for example: G makes 2 legacies to F but leaves out Z. could be implied that there was a mistake of 2 legacies. also if £10 was made to a person twice. then it could be rectified to just mean once. however if it was a different sum of money for example £11 then there is no mistake. these rules only apply to wills not made by them.

Question 7

what are the different types of executors? describe them

Answer 7

executive-nominate - is appointed by the testator
executor-dative - appointed by the sheriff
is needed if there is no appointment or there is one but does not make an effective appointment.

Question 8

what is the dead’s part?

Answer 8

the remainder of the estate after debts and legal rights have been claimed.
so the heritable property and one third of the movables from the estate.

whatever is in the dead’s part, the testator can dispose of as they please.

Question 9

what is the order to get paid in testate succession?

Answer 9

1. debts
2. legal rights
3. legacies

Question 10

what is the order to get paid in intestate succession

Answer 10

1. debts
2. prior rights
3. relicts right
4. cohabitants right
5. legitim
6. free estate

Question 11

what is it called when you choose between legacy or legal rights?

Answer 11

approbate or reprobate

Question 12

in what circumstance will the beneficiaries get less?

Answer 12

this is to compensate for the relict or legitim.

legitim or relict will always get 1/2 or 1/3 then everyone else will get theirs

Question 13

what are the two different types of division?

Answer 13

there is division per capita - where if the claimants are all equal it will be per capita
division per strips- if unequal status (e.g. there are children then there are grandchildren of a deciesed child of the deciesed

Question 14

what happens if someone has been made a collatable advance?

Answer 14

1. then this advance must be added in with the total legitim fund for fairness.
2. must be noted that only gifts of movables count.
3. there is a general rule that a person who does not claim legitim does not have to collate.
4. also you do not need to collate if you are the only one claiming legitim.

Question 15

case where you can incorporate another piece of paper into the will

Answer 15

davidson v convy.

Question 16

in what circumstances may a will be able to be interpreted for the actual meaning of the testator?

Answer 16

there is one way where the common law rules over, this way does not allow subjective intention of the words used but the text must be construed objectively according to the words used.

Another way is through subjective intention. this is seen in the succession Scotland act 2016 (3). however, this can only be used where the testemant was written by someone else and not the testator so home made wills do not count.

common law does not allow subjective intention to be taken into account.must be construed objectively to the words used.

the law allows subjective intention to be taken into account.

Question 17

if you renounce something what happens to the property? also what happens if the testator does not include something in the will? (dont accept the legacy)

Answer 17

the property falls into intestancy and is split into

1. debts
2. prior rights
3. relicts right
4. cohabitants right
5. legitim
6. free estate

Question 18

what is included in prior rights?

Answer 18

three things of:

1. dwelling house
2. plenishings (furnature)
3. financial provision