Head 6: Testaments

Question 1

G Applicant 2009 SLT (Sh Ct) 122

Answer 1

 IN this case an elderly man who was 82 had become incapacitated.
 There was an application for the appointment of a guardian.
 One of the powers asked for by the Guardian was the power to execute a will on behalf of the incapacitated person.
 In this particular case the incapax had written a will himself in 2004 when he had capacity.
 Unfortunately, the will was defective. (and the solicitors responsible get slated in the judgement)
 The guardian asked for the power to execute a new rule beased on the true intentions of what he had when he wrote the 2004 will.
 Court allowed this.

Question 2

T Applicant 2005 SLT (Sh Ct) 97

Answer 2

Woman had alzeimers

 The reason that a codicil was asked for was because the will and the entire balance of the will was predicated upon the idea that the son would receive the house, which was the biggest asset in her estate.
 Unfortunately because of the need to get healthcare for the lady the house needed to be sold to pay for it.
 The will was going to be undermined by this sale.
 The court allowed the codicil as it allowed the true intention of the incapax when they wrote the will to be realised. She wanted her son to benefit by getting the biggest asset (focusing on the value of the asset).

Question 3

Draper v Thomason 1954 SC 136

Execution

Answer 3

 Widow sent a letter to her sister that contained the following message;
 ““By the way while speaking of dying! Should anything happen to me, (which it will one day) I haven’t made a Will, but everything I have is for Billy. Knowing that he will do the right thing.””
 Letter to sister signed ‘Connie’
 Court held that signing “connie” WAS a valid signature and the courts generously took this as a testament.

Question 4

Rhodes v Peterson 1972 SLT 98

Execution

Answer 4

 Mum sent a letter to her daughter;
 “Dearest Dorothy,I am so glad you are coming up for a break next month and it will be lovely to see you again. I have been thinking a lot about you recently and I am concerned about your future. Security especially as you have no home you can call your own…Now I feel better having at least got this down on paper. Do not lose this letter…Lots of love, Mum.”
 Held to be VALID.
 “Lots of love, Mum” was held to be normal way that subscription can be carried out. (S.7(2))

Question 5

Davidson v Convy 2003 SC 420

Adoption

Answer 5

 Person had written testamentary instructions but did not sign it.
 She put the paper in an envelope entitled “My Will, Agnes Bessie Smith”
 Held, that he envelope validly adopted the contents of the envelope. So technically did sign the document as she signed the envelope.
 Therefore adoption is a valid way of creating a testament

Question 6

Lauder v Briggs 1999 SC 453

Proving the Tenor

Answer 6

• deceased made will in 1978
• moved house in 1989 and took possession of will
• died 1995—will couldn’t be found
• someone who thought they may inherit sought an action of ‘proving the tenor’ from a copy of the will the solicitor still had.
• presumption that deceased in possession of will had destroyed it if couldn’t be found

Question 7

*Clyde v Clyde 1958 SC 343.

Revocation of will

Answer 7

 Deceased executed will in 1936
 In 1936 will he left everything to his nephew, James Clyde.
 In 1948 George Clyde asked for the will back.
 1955 George Clyde died.
 After death two copies of the wall were found but the actual will could not be found.
 Court applied some presumption as the Lauder case.
 Presumed to be destroyed even though there was 2 copies of the will (needed the actual will)

Question 8

*Bruce’s JF v LA 1969 SC 296

Revocation of Will

Answer 8

 James Bruce executes will 1945
 James Bruce draws up a new will which includes standard revocation clause. 1949.
 1949 = he also takes up possession of new will.
 He dies and there is no sign of the new will.
 This means the 1945 will is revived as the 1949 will is presumed to be destroyed, and the standard revocation clause was also presumed to be destroyed.

Question 9

Nicolson 1922 SC 649;

• Conditio si testator sine liberis decesserit.

Answer 9

 Here the testator had executed two wills.
 The first will provided for the wife, daughter, and any later children.
 The second will provided that everything was to go to the wife.
 There was one daughter alive when the second will was executed, but another was born afterwards.
 The second daughter successfully challenged the second will.
 This meant that the second will was revoked.
 Therefore the first will revived and therefore governed the situation.

Question 10

White v Jones [1995] 1 AC 207

Solicitor duty to Legatees

Answer 10

 Testator asked the solicitors to make his will with legacies being given to certain beneficiaries.
 The solicitor does not prepare the will in accordance with the instructions.
 The testator died and the people supposed to inherit did not.
 Question was whether the people who lost out on the legacies, due to the solicitors negligence, could sue for negligence.
 By a close majority the HOL held that the solicitor did owe a duty of care to potential beneficiaries.
 This was based on the old delictual rule; that they had undertaken responsibility by virtue of dealing with the testator.
 **This approach was adopted in the Scottish case of Holmes v Bank of Scotland.

Question 11

Fraser v Rose

conditions in legacy

Answer 11

• A legacy was left on the condition that the legatee did not live with her mother.
• It was contrary to public policy that a child should not live with her parents so that she could inherit from testament,
• HELD, that the condition was pro non scripto (as if not written) so the legatee took the legacy free from the condition.

Question 12

Cathcart’s Trs v Bruce 1923 SLT 722

interpretation of Testament

Answer 12

 To determine to which man the testament referred the court had to look at the surrounding evidence.
 Looked at a letter of the deceased’s wife who referred to the children as “young men”.
 It was clear from this context that the person referred to must have been General Alexander James Bruce

Question 13

Nasmyth’s Trs v NSPCC 1914 SC (HL) 76.

intepretation of Testament

Answer 13

 The deceased in this case left a legacy to charity.
 The deceased left the legacy to the “National Society for the Prevention of Cruelty to Children.
 This charity however was the national charity that only operated in England.
 Argument was that the testator actually meant the Scottish society; The Scottish National Society for the Prevention of Cruelty to Children.
 Court established that in the abstract that could have been what the testator meant, but they failed to prove this averment.
 Per Earl Loeburn; “I think the true ground upon which to base a decision in this case is that the accurate use of a name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will. It is a very strong presumption and one which cannot be overcome except in exceptional circumstances.”

Question 14

Burn’s Trs 1961 SC 17.

Answer 14

 An uncle left a legacy to his nephew and “his wife”
 The nephew’s wife died and he re-married.
 The question was wether the new wife would be able to receive the legacy?
 Court held, that the new wife could inherit from the legacy.
 Held, that the testament was a family plan and the words “his wife” was meant to cover anyone who was his wife at the time.