Module 3 - Thr forms of Wills

Question 1

1. [ ], residing at…residing at is useful for?

Answer 1

if a question of domicile arises.

Question 2

Testamentary statement as to domicile within a Will. Is it conclusive of the matter?

Answer 2

No. Look at the circumstances. there must be other elements within the deceased’s life which support it or which are consistent with it. Eg are there consistent declarations of domicile in other papers? Has the person stated on various occasions and to different people that he would never return to Scotland? residence of itself may not be sufficient to establish a new domicile of choice. Residence on its own has never been sufficient in Scotland as a determinant of domicile. The Court will also look to see if the deceased may have had an ulterior motive in the declaration and where shown, the evidetial vallue of the declaration will be reduced.

Question 3

If a person disappears after how many years might there be a presumption of death?

Answer 3

7

Question 4

If a person disappears how do you get a declaration of death?

Answer 4

Petition the Sheriff under the Presumption of Death (Scotland) Act 1977.

Question 5

How would a court establish the time of death if the circumstances of death are uncertain where a person has disappeared?

Answer 5

It will be the end of the day occurring seven years after the date on which he or she was known to be alive.

Question 6

What is common calamity?

Answer 6

eg where the parties are involved in an accident and both are killed outright or one being killed outright and the other surving for a few days.

Question 7

General rule to deal with common calamity is what and what statutory provision?

Answer 7

if the time of death of two people are medically inseparable, then the younger is presumed to have survived the elder.

The Succession (Scotland) Act 1964, s31

Question 8

What are the exception to the common calamity general rule?

Answer 8

1. if the people are married to each other, neither is presumed to have survied the other, and
2. where the elder person left a legacy in favour of the younger whom failing (if the younger person fails to survive) to a third party, and the younger dies intestate, the elder is presumed for the purposes of the legacy to have survived the younger. s 31(2) The Succession (Scotland) Act

Question 9

What are the types of Legacies?

Answer 9

Special, Demonstrative, General or Residuary

Question 10

When is a legacy “adeemed” and what does it mean?

Answer 10

if for example the granter had sold the specific item (legacy) provided for within the Will before he had died. It means that the legacy is no longer valid.

Question 11

What is abated?

Answer 11

if for example there is insufficient estate to pay financial legacies, they are abated - ie scaled down proportionally.

Question 12

A legacy of something which the testator does not own. What is this known as and what will happen?

Answer 12

This is known as legatum rei alienae (legacy of someone else’s property).

If it can be shown to be a mistake, the legacy lapses. If the legacy was made deliberately, knowing that it was not owned, the Executor must make an attempt to acquire the thing.

Question 13

Special order of the listing of the benefits. What is it and why?

Answer 13

1st listed: Specific (ie non - monetary) bequests (eg a car, painting, etc.
Next listed: monetary bequests/legacies
Finally the residuary provisions are listed.

Reason: if the testator’s Estate proves insufficient to sustain the benefits left in the Will, the residue suffers first of all. Thereafter, monetary bequests abate proportionally (ie reduce proportionately). If the debts outwight the Estate it is only then that specific bequests will require to be sold in order to meet those debts. Specific bequest are therefore in a privileged postion.

Question 14

Can illegitimate children inherit from their natural parents?

Answer 14

Yes

Question 15

Can illegitimate children inherit from each other or any other party where there was intestacy?

Answer 15

Yes - but only since 8th Dec 1986.

Question 16

What act removed the prejudice against illegitimate children?

Answer 16

Tje ;aw Reform (Parent and Child) (Scotland) Act 1986

Question 17

what does per stirpes mean?

Answer 17

per branch - eg of Dad’s estate if Cl & I deceased, Claire & My survivors to get 50% per stirpes would mean that Morgan and Sasha would get 25% each and David would get 50%

Question 18

what does per capita mean?

Answer 18

per head - Claire & My survivors inherit per capita would mean that Morgan Sasha and David would equal shares.

Question 19

Accretion being implied

Answer 19

Presumption of Scots law applies to children, grandchildren nephews nieces - a class of people. If testator bequeaths to a group eg grandchildren (even if names them) and one dies before testator, on testators death that portion would pass to the survivor of the grandchild - unless you includ the phrase “but expressly excluding their issue”. If you do put that phrase in then the full amount gets shared between all the surviving grandchildren - ie it accresces.

Question 20

If leave money to a charity but not been precise in the naming of it and they challenge, who pays the fees of the litigation?

Answer 20

the Estate.

Question 21

What are the limits beyond which a Wills draftsman in Scotland will not be held liable?

Answer 21

Draftsman is likely to beh led liable to the beneficiaries only if there has been blameworth delay in the preparation of the Will or there has been some fatal and fundamental error in the execution of the same which the draftsman has not noticed.