Special Destinations and Executries Flashcards
Two types of destinations.
Special destination: inter vivos conveyance
Destination-over: in testament
Conditional vs substitute
Conditional: no claim if institute survived
Substitute: may still have a claim
S(S)A 2016, s8 - all destinations conditional unless expressly provides otherwise
When would a special destination be created?
- inter vivos
- ‘survivorship destination’: contained in disposition with agreement of institute and substitute
- disposition entered into Land Register
- instrument to ensure other owner recieves ownership
Requirements for special destination to take effect?
- institute must still own the property at death
- substitute must still be alive when institute dies
5 ways that special destination can be evacuated?
1) disposal of property
2) death of substitute
3) substitute renounces destination
4) divorce S(S)A s2
5) legacy by institute
Provision for evacuting special destination.
S(S)A 1964 s30
- testament must provide specific reference to destination
- declared intention on part of testator to evacute
Effect of insolvency/debts on special destination. (Fleming)
Special destination is an automatic transfer. Debts payable from interest that transfers to surviving spouse.
Fleming:
- court clarified special destination will not dodge creditors
Who is an executor?
Individual responsible for gathering, administering, disposing of estate of deceased in accordance with testament/intestacy rules.
Executor-nominate.
Nominated in testament, often expressly.
Constructive: deemed executive nominate if legacy is residuary/universal.
Executor-dative.
Appointed by sheriff.
Occurs when deceased has left no instruction (intestacy), chosen by list of property.
Ford v Campbell.
If more than one person falls in particular class, each entitled to insist on being appointed. Court does not have discretion to pick.
Effect of divorce on destinations/testament.
S(S)A 2016
s1 - testament - revokes any provision
s2 - special destination - property destination revokes
Unless will states that divorce will have no effect.
Garnetts Excr.
- criticism of dative’s requirement to lodge caution
- held that the court does not have discretion to dispense requirement to lodge caution
What are the procedural steps the dative must follow?
- decerniture (identify or appoint)
- inventory (list of assets)
- confirmation by sheriff as commissary (title to distribute)
- eik (additional inventory if required)
Murray Ptnr.
Existence of incapax surviving ex spouse dative did not prevent children being appointed as executor nominate.
C Excrs, Applicant.
- Executor has a fiduciary duty to act
- cannot appoint someone on your behalf
- RBS could either act themselves, or decline to act
What is the 6 month rule ?
Executor will not distribute estate for at least 6 months:
- allows exec. to identify beneficiaries/status
- allows creditors to come forward
Liability of executor.
- personally liable for any mistakes
- S(S)A 2016 s23, exec. can apply to escape personal liability
Millers Excr v Miller (bankruptcy)
- executor cannot declare bankruptcy for themself
- court must declare bankruptcy
- trustee in bankruptcy will be appointed
Cum onere rule.
Where there is debt on specific property, legatee bears liabilty for that debt. Can be applied over multiple assets.
How are debts paid for in a solvent estate?
Rules of abatement.
Debts come off residuary > general > specific
Who is appointed in the case of an insolvent estate? (legislation)
Executor - creditor: appointed to wind up estate
Bankruptcy (S) Act 2016, s5: sequestration
