Module 1 Legislation & Cases Flashcards
Testamentary capacity for children over 12
S2 of the Age of Legal Capacity (Scotland) Act 1991
Nisbet’s Trustees v Nisbet (1871)
Eg of a case where able to show that the person had recovered from his previous state of general insantity to be of sufficient sound mind to make a will
Sivewright v Sivewright’s Trustees (1920)
To strike down a Will of a Testator suffering from a delusion it must be deomnstrated that :”…if the testator is not generally insane, the Will must be shown to have been the outcome of the special delusion. It is not sufficient that the man who disposes of his property should be occasionally the subject of delusion. The delusion must be shown to have been actual and impelling influence.” The particular delusion must be shown to have actually influenced the terms of the will.
Banks v Goodfellow (1870)
Individual suffered from an insane delusion that he believed he was being pursued by demons that no-one else could see. Asylum but subs released but still suffered from same insane delusion. C of Appeal:Essential (for capacity) that:1. the testator will understand the nature of the Act and its effects;2. shall understand the extent of the property of which he is disposing;3. shall be able to comprehend and appreciate the claims to which he ought to give effect.4. that no disorder of the mind shall poison his affect, pervert his sense of right or prevent the exercise of natural faculties5. No insane delusions shall influence his Will in disposing of his property, and bring about the disposal of it which, if the mind had been sound, would not have been made.
Kenward v Adams
it would require very persuasive evidence to enable the court to dislodge the conclusion reached by the professional people at the time the will was prepared.
Morrison v McLean’s Trustees (1882
Whether the defender, taking advantage of the testator’s weakness and facility procured the deed by fraud or circumvention.
Wheelans v Wheelans
Persuasion by the interested party might in itself amount to circumvention where there was a high degree of facility on the part of the testator.
Ross v Gosselin’s Executors (1926)
The essence of circumvention and facility is that the person practices on the debility of another whose individuality is impaired by infirmity or age, and moulds the inclinations of the latter to his own profit.The essence of undue influence is that a person, who has assumed or undertaken a position of quasi fiduciary responsibility in relation to the affairs of another, allows his own self interest to reflect the advice or guidance he gives in his own favour.
Eg of Quasi Fiduciary
- Allcard v Skinner
- Horne v Whyte
- Allan v Allan
- Grant’s Executors v Grant
- Gaul v Deerey
- spiritual advisor and his practitioner
- a housekeeper
- a parent towards a child
- child to a parent
- a taxi driver
Honeyman’s Executor v Sharp
the relevant relationship (ie quasi fiduciary) could arise:”where a person, in pursuance of his profession or calling undertakes the giving of advice to another and where, as a result there develops a relationship between the advisor and the advised in which the latter places trust and confidence in the former.”
Taylor’s Executrices v Thom 1914
the Will must be SUBSCRIBED (ie signed AT THE END as it shows that the testator has finally made up his or her mind
McLay v Farrell
words added below a signature were invalid
Munro v Coutts (1813)
Letter to a Sol saying draw up will in these terms was regarded as simply a letter of instruction to make a will
Rhodes v Peterson 1971.
Letter to a Sol saying draw up will in these terms was regarded having testamentary intentio
Section 4 of The Requirements of Writing (Scotland) Act 1995
Procedure for Will which has not been witnessed. ie presentation of an Affadavit to the Court confirming handwriting and signature of the deceased by someone well acquainted with it.
