Module 4

Question 1

What are the restraints on a testator’s freedom to dispose of his/her property as he/she choses? - ie Restraints on the Freedom of Testation

Answer 1

1. Illegality, Immorality and Impossibility.
   If a leagacy is one of these it is void. If a condition to the legacy is one of these, the legacy is valid but the condition falls. So condition of £5000 if you do not marry. The condition is illegal and falls, the legacy of the £5000 remains and does not fall.

2.Public Policy - first case this was enunciated in was McCaig v University of Glasgow. The will had left considerable fortune to build towers on his estate containing statues of him and his ancestors. Court said, “if it is not unlawful, it ought to be unlawful to dedicate…the whole income of a large estate to objects of no utility, private or public, objects which benefit nobody , and which have no other purpose or use than that of perpetuating at great cost, and in an absurd manner, the idiosyncrasies of an eccentric testator.”

Mackintosh’s Judicial Factor v Lord Advocate - grand mausoleum not allowed by court but tombstone or small one ok.

3. Legal Rights. You can’t disinherit one’s spouse or registered Civil Partner or children completely.

Question 2

What are Legal Rights

Answer 2

If there are spouse/civil partner plus children surviving:
1.The right of the surviving spouse or registered Civil Partner to one thrid of the moveable estate (ius relicti in case of male survivor and ius relictae for female) and the right of the children of the deceased to share one third of the moveable estate (known as legitim).

If there is just one category of relationship surviving:
2. The entitlement is to one half.

Question 3

Who can claim?

Answer 3

Spouses - including estranged or separated spouses unless there is in place a valid Separation Agreement in which both spouses waived their respective entitlements to claim legal rights from the Estate of the other.

Civil partners under the Civil Partnership Act 2004

Children - legitimate adopted and illegitimate

The issue of a child who has predeceased the maker of the Will.

Question 4

What can legal rights be claimed against?

Answer 4

The net moveable Estate.

Question 5

What is the Moveable Estate?

Answer 5

Anything which is not regarded as heritable estate, so it will include, cash deposits, value of stocks and shares, insurance policies, furnishings, jewellery, personal effects, artworks, stamp collections etc etc.

Question 6

What is Heritable Estate

Answer 6

The value of land and buildings.

Question 7

Can Legal Rights be claimed against the Heritable Estate?

Answer 7

NO

Question 8

What is Net Moveable Estate

Answer 8

The estate is valued as at the date of death. That figure is then reduced by deduction of:

1. Funeral expences
2. Debts owed as at his/her date of death (but not heritable debts like a mortgage).
3. costs incurred in valuation of the moveable Estate (even though incurred after death to get estate valued).
4. Legal expenses for the winding up of the estate up to the point of obtaining Confirmation (confirmation is scottish equiv of Probate)
5. Costs incurred in the realisation of assets to enable the Executors to pay out Legal Rights’ Claims

Question 9

Can a beneficiary claim both legal rights and take his entitlement under the Will?

Answer 9

No - S13 of the Succession (Scotland) Act 1964 as amended requires those entitled to legal rights to elect whether to take the legal rights claim and forfeit the benefit left to them under the Will or visa versa.

Question 10

Executor’s obligations to those who have a claim to legal rights.

Answer 10

Obligation to inform all such people and to make available to those individuals of their Legal Agents the information required to enable such potential claimants to decide whether or not to claim- even if the testator has sought in the Will to disinherit someone who would have been so entitled. They must not discourage but equally they are not required to encourage a claim.

Question 11

How long does the right to claim subsist?

Answer 11

20 years.

Question 12

What happens if someone with a legal claim can’t be traced.

Answer 12

Will need to set aside a sum to meet the potential claim of that missing beneficiary and bear interest on it as interest will be payable from date of death to date of payment. The rate of interest will be equated to that which the remainder of the Estate gained during the relevant period - if that is noe because it was in Premium Bonds for eg - then interest is none for the no longer missing beneficiary.

Question 13

Can a claim to legal rights be defeated?

Answer 13

Courts are more than ready to “attack” what they regard as sham attempts to defeat a claim to legal rights by the testator - eg by seeking to secure that he has no personal moveable Estate at the date of death or deliberately expending the moveable estate by purshasing heritable property so no claim can be made against it. In practice it is very difficult to arrange an estate to prevent a legal rights claim

Question 14

What is collation, who does it apply to and who does it not apply to?

Answer 14

Applies to children and the issue of a deceased child. It does not apply to spouces or registered civil partners. Where a claim is made against a Legal Right, others claiming Legal Rights can require that the legitim fund is effectively reduced by the amount that has been advanced (Collateable gift) to the particular person claiming the right by the Testator during his lifetime. In effect the collateable gift is viewed as an advanced payment from the portion of the moveable estate reserved to the issue as legitim.

Question 15

What advances require to be collated?

Answer 15

Only those which affect the legitim fund. Those not included are:

1Payments in discharge of a parent’s natural duty of maintenance and the education of a child.

2. Payments made by way of remuneration for services arising out of an onerous contract.
3. Loans (as these in any event, if not repaid, would remain part of the parent’s estate)
4. Gifts of heritage (as heritage and its value cannot affect the size of the Legal Rights fund).

Question 16

Collation can only be enforced

Answer 16

if an individual who has received a lifetime gift also claims Legal Rights. Eg if a child receives a gift of 50k but does not claim Legal Rights the the other claimants on that fund cannot force the former to collate.

Question 17

Restrictions of Accumulation - law contained in:

Answer 17

the Trusts (Scotland) Act 1961 s5 and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 s6.

Question 18

Why is this needed?

Answer 18

It was decided that it was not a good thing for the testator to direct his estate for long periods (Jarndyce v Jarndyce) where testator Thelluson had created a trust which lasted 60 years and accumulated funds over that period.

Question 19

What are the 6 periods of accumulation

Answer 19

1. If the trust is a lifetime trust (ie set up in granter’s lifetime - the income cannot be accumulated beyond the lifetime of the granter.
2. If the trust is set up on death (mortis causa) - income cannot be accumulated beyond 21 years after the granter’s death.
3. Income may not be accumulated beyond the minority of anyone alive/inutero when the granter was alive- minority = 21 years so the very max period is 21 and 9 months.
4. The income can not be accumulated beyond the minories (21) of person who would, under the will, be entitled, if of full age, to the accumulated income.
5. income cannot be accumulated twenty one years from making the deed.
6. the income may not be accumulated beyond the minorities of person living or in utero at the date of the dead - so 21 + 9 months.

Question 20

How can a Scottish Will be revoked?

Answer 20

1. By deliberate intention
2. By implication
3. By presumption of law.

Question 21

Deliberate Intention

Answer 21

• Express or general clause of revocation contained in a later Will.
• Physical Destruction of a Will (Thomson’s Trustees v Bowhill Baptist Church 1956)
• A later Will which is a universal settlement of the testator’s estate even if there is not express clause of revocation. (Nicolson v Nicolson’s Tutrix)

Question 22

Persumption of Law

Answer 22

Eg conditio si testator sine liberis decesserit. Where a child is born to the Testator after the date of the Will and no prvision (even conditional) is made for such a child. There is a strong presumption that the testator would have intended to benefit the child and the child can invoke this conditon. It will reduce the WIll with the effect that the later child may have a proportionate part of the estate on intestacy.

If a significant period of time has passed, may be inferred that the testator did not intend to benefit the child but a period of 10 years was not too long to defeat the claim in Miligan’s judicial factor v Miligan. The Court held that this was not a sufficient periof of time to defeat the oepration of the condition.

In Gordon v Stewart-Gordon - child born slightly before Testator died but evidence was that he had inspected the Will and had considered tha thte child was adequately provided for and therefore decided to omit the child and so the conditio did not apply.

Question 23

Revival by revocation of the revoking Will. Can this happen?

Answer 23

Yes! See Scott’s Judicial Factor v Johnston and Others.

Also: Bruce’s Judicial Factor v the Lord Advocate
Earlier Will was expressly revoked by a subsequent Will. At the testator’s death, the later will could not be found and having been in his possession, it was presumed that he had destroyed the same animo revocandi with a view to “reviving” the earlier Will.