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.
