Module 3 - Legislation & Cases Flashcards
Reddington v Riach’s Executor
Born in Soctland and therefore domicile of origin was Scottish. Travelled the world with work but retired in England. Wife died and buried in England. Declaration in his new Will post wife’s death that his domicile was Scottish. His declaration was not binding & Court entitled to look at whole circumstances. Truely he was domiciled in England and particularly given clear evidence that he had stated on various occasions to different people that he would never return to Scotland.
McEwan v McEwan or might be Ross v Ross - book not clear - need to check it out!
Declarations of domicile were contained in other papers. Court can look at these along with other evidence to determine domicile.
Nasmyth’s Trustees v national Society for Prevention of Cruelty to Children 1914
Scotsman, living in Scotland, left a number of legacies to Scottish Charities. He also left legacy to “The National Society for the Prevention of Cruelty to Children” - The Scottish National Society for the Prevention of Cruelty to Children contested. Court of Session found that given the circumstances of the Will, a Scotsman would have inteded that the Scottish Charity would benefit. House of Lords reversed the decision - English charity were entilted - Be specific in wording the charity.
S9 Chidren (Scotland) Act 1995
If the benefit left to a chlid under 16 exceeds £20000 and there was no appropriate trust set up in the will, the Executor must seek a direction from the Accountant of the Court - which increases expense and doesnt provide flexibility - best to have a giving executor power to give the money to parent, guardian to use with appropriate receipts etc or even to retrain all or part of it until child is majority and give out income and/or capital as he sees fit until then.
Trusts (Scotland) Acts 1921 & 61, The Trustee Investment Acts 1961 and the Charities and Trustee Investment (Scotland) Act 2005
These are the statutes which give powers to the Trustees and Executors. Covers normal administration aspects, not much more and so usual to have extra powers in the Will if wanting them to do ro run investments/business etc. From 1961 Trustees could dive the estate between Narrower Range investments (ie safe investments) and Wider Ranges 9Sound equities) investments whereas prior to this the powers of investment for trustees were striclty limted to Government Stocks and other safe investments,
Can a child’s parent appoint a guardian in the event of the parent’s death?
Yes - s 7(1) The Children (Scotland) Act 1995. but no effect unless:
it is in writing, signed by the parent, and the parent at the time of deat was entitled to act as legal rep fof the child or would have been if he surved until after the birth of child) and any parental responsibilities or parental rights which a surviving parent has in relation to the child shall subsist those whic by, under or by virtue of this part of this Act, the appointee so has.
Appointement as guardian shall not take effect until accepted (ss3) expressly or impliedly by acts which are not consistent with any other intention.
ss4 - if 2 or more appointed - acceptance is severable - ie all don’t have to accept.
ss2 provides for guardians death but again appointment of guardian by the guardian would have to be in writing and signed etc
Robertson v Fleming 1861
Courts felt bound by this decision such that for a considerable period of time the draftsman of a Will in Scotland could not be held liable to disappointed beneficiaries who claim that they have suffered loss due to the negligence of the Will draftsman. Position now changed
Holmes v The Bank of Scotland 2002
Delay on part of bank in putting into effect a new Will by client who died before it could be signed. Beneficiaries who claimed to have missed out sued. Case settled but it was considered that the case brought Scotls law into line iwth that in England (English case of White v Jones)
Mathews v Hunter & Robertson Limited 2008
Husband and Wife jointly buy a property (like a joint tenancy in England) it has a survivorship destination which vests the interest of the property in the survivor UNLESS FULLY REVOKED prior to death. Couple divorce -a disposition (Title Deed) is dran up to convey husbands share in property to his wife. The survivorship destination had not been properly revoked so when she died, half the property went to the husband. Executor raised action against the solicitors who had been involved in the conveyancing transaction. Found against the Executor - no loss to her estate IN HER LIFETIME and the case did not involve the making of a will - it arose from alleged negligence in a conveyancing transaction.
Fraser & Others v McArthur Stewart 2009
Testator given negligent advice that croft could not be bequeathed to four individuals - so chose 1 and executed a Will accordingly. Others found the negligent advice - Sol no liable. 1 - The Will he had instructed to be made, had been signed and executed and he did have the opp between then and his death to take a 2nd opinion.
