Head 7: Testate Succession Flashcards
What is testate succession concerned with?
This concerns the distribution of an estate in accordance with the rules of testate succession.
What is the order of distribution?
1) The first thing the executor must do is distribute debts and taxes.
2) The executor must then pay legal rights.[ These have both been considered earlier, so here legacies will be considered in more detail.]
3) The executor must pay legacies.
What are the different types of legacy?
1) Special / specific legacies
2) General legacies
3) Residuary legacies
4) Universal legacy
5) Legacies may be conditional
What are special/specific legacies?
⁃ These are legacies in which a specific asset or identifiable set of assets are left by the deceased (e.g. car, house, necklace, brooch, stamp collection, marbles, shares, etc)
⁃ By virtue of a special legacy you may leave an entire thing or you can leave a proportion of a thing (e.g. half of my house).
- It does not need to be of corporeal property, it could be a debt and this is still a special legacy not a pecuniary one.
⁃ Leaving a right to enforce a debt is also a special legacy since it is specific to an identifying asset.[ Be careful with this - this is NOT THE SAME AS LEAVING MONEY TO SOMEONE.]
What are general legacies?
These legacies leave a certain amount of a certain type of thing to a legatee, rather than leaving a specific identified thing.
⁃ Examples include: 300kg of silver, 1 tonne of apples.
Money is the most conventional general legacy. It is called a pecuniary legacy. It is the only type of general legacy ever encountered in practice. It does not have to depend on the testator having liquid funds.
What are residuary legacies?
Theses legacies dispose of any remaining estate after all the other claims on the estate have been dealt with (so anything left after debts/taxes, legal rights and other legacies.)
What is a universal legacy?
A legacy that disposes of the entire estate[ This is obviously subject to legal rights etc.].
What does it mean when we say that legacies can be conditional?
If a condition is contrary to good morals (contra bonos mores) it is void. Only the condition is void and no the legacy. e.g. In Fraser v Rose a legacy was left on the condition that the legatee did not live with her mother. The condition was held to be pro non scripto (as if not written) so the legatee took the legacy free of the condition.
[Barker v Watson’s Trs 1919 SC 109; Grant’s Trs (1898) 25 R 929; Balfour’s Trs v Johnston 1936 SC 137; Aird’s Trs 1949 SC 154; Innes’s Trs 1963 SC 339; Forbes (1882) 9 R 675; Simpson v Roberts 1931 SC 259; Miller 1977 SLT (Sh Ct) 67.]
What is the interpretation of a legacy based on?
Interpretation of a testament is based on the words of the testament itself.[ This is the starting point in every case.] (NB there won’t be implied terms in the same way as you can in contract law.)
The meaning of the words can be interpreted in light of the context and circumstances. When the court is doing this it will take the perspective of the testator (sit in the testator’s chair Hay v Duthie 1956).
What happens if a testament is unclear? Can it be rectified?
Under the Law Reform (Misc Provs) (Sco) Act 1985 s 8(6), the wording of a testament cannot be altered[ However see Marley v Rawlings [2014] below.] by the court to reflect the true intention of the testator.
*Lawson’s Exr v Lawson 1958
The following case gives an example of interpretation of a testament by the court:
Estate consisted of (a) house (b) furniture in house (c) cash in house (d) bank accounts (e) investments. Who takes what?
⁃ The terms of the will were[ I, Janet Walker Lawson, state the following to be my will after all the expenses are paid incurred by my death. I appoint my brother, Thomas Lawson, 47 Wyke Road, Weymouth, to be Executor, and state that he is to receive all my furniture, belongings, etc. I state that all money I leave has to go to the Edinburgh Royal Infirmary. Signed in my own handwriting, Janet Walker.]. The court was required to interpret what was meant by this testament.
⁃ The ERI claimed that since it was due “all money” it was entitled to the movable estate (not including corporeal moveables) and the heritable estate.
⁃ The brother claimed everything (except cash in the house and bank accounts) on his interpretation of that “all my furniture, belongings etc”.
⁃ The court restated the rule that it must take account of the circumstances. The key words the court had to interrupt were money and belongings.
⁃ The court held that although in some situations “belongings” might include heritable property, in this case it did not since, at the time the testament was written, the testator didn’t own any heritable property.
⁃ In relation to “money”, the court held that pretty much anything which was a bank account and not a corporeal moveable constituted money.
⁃ This meant the house fell into intestacy (since it wasn’t covered by the word belongings or money) - this meant the brother inherited it under the rules of intestate succession. The furniture also went to the brother under ‘belongings’.
⁃ The ERI obtained the cash, the pension, the bank account and investment under ‘money’.
Marley v Rawlings [2014]
The following Supreme Court case suggests that the rules on interpretation may not be quite as clear as they once were.
⁃ Husband and wife went to a solicitor and had identical (mirror image) wills. Accidentally, they signed the wrong will (husband signed will executed for wife and vice versa).
⁃ 1) In relation to the interpretation of the testament (in English law) the court made a number of very interesting observations (obiter). They seemed to suggest that the traditional approach of looking at the words only, albeit with some context, was quite old-fashioned and that it might be better to think about it in the same way that contract law has moved.
⁃ 2) The rectification question was clear - in England it is possible to rectify a testament and since this was a clear clerical error it was possible to rectify the will. However in Scotland, rectification is not possible[ Due to the Law Reform (Misc Provs) (Sco) Act 1985 s 8(6).].
⁃ Lord Hodge (Scottish judge) mentioned that this isn’t a binding authority in Scotland but made a number of observations about what might have happened in an analogous Scottish case. He stated that it isn’t possible to rectify a testament in Scotland, however it is possible to partially reduce a testament and then pronounce a declarator of its terms. So the end result would be the same, but instead the court would reduce any defective part (e.g. the erroneous execution) and then declare that its terms represent what the testator intended.
*Crozier’s Trustee v Underwood 1963
Another relevant case concerning interpretation of an ambiguous will.
Make sure to read the will in the comment below:
⁃ The testator was partially illiterate which made interpretation of the will difficult.
⁃ The first question was what was the effect of “all my other affect” mean? The court held that the man probably meant ‘affects’ which suggests he meant ‘goods’.
⁃ The second question was could “all my other affect” refer to “21 South Hermitage” since there was no specific mention of what was to happen to it. The court held yes the house was covered by this phrase. The court held that it was necessary to look at the surrounding circumstances to work out what was meant. Since the will stated that his granddaughter Charlotte was living with him also at the house, the court held that this indicated that he had in mind that he would leave her this house.
Will: “I Arthur Underwood residing at 21 South Hermitage St Newcastleton, on the fifteenth day of January nineteen hundred and twenty one year for the settlement of my affairs on my Death do herby give and bequeath my Daughter Grace, Wife of Thomas Armstrong, Chollerton staton My House, No. 6 South Liddle Street Newcastleton To my Grand daughter Charlotte, Wife of Robert Crozier Mason residing their Also all my other affect except the clock which I give of my Great Grand daughter Jean Crozier, I alo give to Jams Arthur Crozier my watch and the Bible which I got form my son John in America, and 2 Volums of Christopher Sturm, and all my School copies, also to my Great Grand Daughter Frances Mary Crozier the Life of Christ. All other affects go to Charlotte both in sidside the hous and out side that belongs to me, and all money that I my have at my death. I hereby appoint my Daughter Grace and my granddaughter XX as my Sole excutors to cllect all money that my become due to me and pay all expences. Arthur Underwood.”
What are the difficulties which arise when identifying the legatees?
One of the difficulties which can arise is the identification of legatees:
Erskine stated that a legacy is valid even if there is an error in the name of the legatee … provided his description identifies him sufficiently from all others.
The difficulties can be due to:
1) Ambiguous name
2) Unambiguous charity name
3) Where the legacy is designed by a relationship
4) Class legacies
Cathcart’s Trs v Bruce 1923
[Ambiguous Name] ⁃ A legacy of the residue was left in favour of “the sons of General Alexander Fairlie Bruce”. The problem was that there was no such person. There was a General Alexander James Bruce and a Mr Alexander Fairlie Bruce. The court considered supporting evidence to work out the testator’s intent. There was a letter uncovered from the deceased’s wife which referred to the sons as ‘young men’.
⁃ The General had sons aged between 12 and 24 when it was written. The Mr had sons aged between 34 and 50. The court held that the testator meant General Alexander James Bruce and had simply made an error in relation to his middle name.
- Erskine III 9, 8: “A legacy is valid though there should be an error in the name of the legatee…provided his description distinguishes him sufficiently from all others”.
Nasmyth’s Trs v NSPCC 1914
[Unambiguous charity name]
⁃ Scottish testator left a legacy to the “The National Society for the Prevention of Cruelty to Children”. As it happened this charity only carried out work in England. There was an equivalent charity which operated in Scotland called the “The Scottish National Society for the Prevention of Cruelty to Children”. Question was, what had the testator meant?
⁃ All the other bequests in the will had been to Scottish charities. But since he had written down the name of the English charity, the words were so clear that the court would require very substantial evidence to prove that he intended the Scottish charity. There was no evidence on this at all and thus the court held that the money had to go to the English charity.
*Couper’s JF v Valentine 1976
Is designation by relationship a condition? - NO
⁃ Testator bequeathed his estate to ‘my wife, Mrs Dorothy Couper’. Before the deceased died he divorced Mrs Dorothy Couper. The question was whether the words ‘my wife’ imposed a condition on the legacy (that she would have to remain his wife)?
⁃ The court held that these words were not conditional, they clearly identified the legatee.
Ormiston’s Exr v Laws 1966
Testator left legacy to ‘my fiancée Mrs Sylvia Martis’. Sylvia Martis was not his fiancée. Was Mrs Sylvia Martis entitled to the legacy?
⁃ Yes, she was entitled since the legatee was clearly identified. The words ‘my fiancée’ were not conditional.
Burn’s Trs 1961
Legacy left to a nephew and ‘his wife’. The nephew divorced and then remarried after the execution of the will. Question was whether the fact the nephew now had a new wife mean that she could inherit under the deceased’s testament.
⁃ Yes - the reason was that the testator had intended to benefit the testator’s family rather than a particular individual. So in this case ‘wife’ refers to a person who is occupying this position at the relevant time.
What is a class legacy?
A class legacy is left to a class of individuals rather than a specific individual. E.g. "the children of Andrew Smith". ⁃ Example: Jane gives legacy to "Tom's children." Tom has four children. One dies a year before Jane's death. One born a year after her death. Who takes legacy? ⁃ The three surviving children at the time of the deceased's death take the legacy. The one who died has predeceased so is not entitled to inherit. The post-born does not inherit either. A class is normally to be ascertained at the date of the testator’s death.
