Succession

Question 1

Lamb v Lamb

Answer 1

Common calamity: when trying to decide who died first balance of probabilities is the key question; presumptions only used if not clear

Question 2

Burns v Secretary of State

Answer 2

Forfeiture: wife convicted of culpable homicide following years of domestic violence = forfeiture rule applied by court

Question 3

Paterson, petitioner

Answer 3

Forfeiture: domestic violence case - in this case held s5 forfeiture act CAN be modified in cases of murder

Question 4

Tannock v Tannock

Answer 4

Forfeiture: only killers can apply under forfeiture act (wife killed husband, step-son removes and hides knife)

Question 5

Machin’s Trs v Machin

Answer 5

Debt lives on - debt status of legal rights special

Question 6

Cameron’s Trs v Maclean

Answer 6

Legal rights are debts - must settle for money no property (case where someone with legal right was wanting to claim a share which is a right in property not money)

Question 7

Stewart v Brucee Trustees

Answer 7

There is time to consider what to renounce

Question 8

Coats Trs v Coats

Answer 8

If only one claimant then no collation required

Question 9

G Applicant 2009

Answer 9

Guardian granted access to amend existing will but unclear whether they can write a will where none existed in the first place

Question 10

P’s Guardian 2012

Answer 10

The court will not rewrite wills

Question 11

Draper v Thomason

Answer 11

‘Connie’ - held valid signature because at the end of the document/will

Question 12

Rhodes v Peterson

Answer 12

‘Do not lose this letter, lots of love Mum’ - held to imply testamentary intention

Question 13

McLay v Farrell

Answer 13

Signature is to go at the end of a will so anything underneath the signature is not to be interpreted as part of the will

Question 14

Davidson v Convy

Answer 14

Doctrine of adoption: list of instructions on paper not signed - put in envelope that said ‘will’ and was signed = accepted

Question 15

Downey’s Excrs

Answer 15

Codicils have to be carried out exactly the same way as wills to be valid

Question 16

Lauder v Briggs

Answer 16

Lost will: upheld presumption that it was destroyed if not in possession

Question 17

W v W 2022

Answer 17

Lost will: last known possessor was solicitor and not deceased. Court satisfied upon evidence that will had been lost and not destroyed because sol had copy on file and deed of execution.

Question 18

Clyde v Clyde

Answer 18

Revocation by destruction

Question 19

Stuart Gordon v Stuart Gordon

Answer 19

Post natis rule: woman very unwell in run up to birth. Had baby and died 3 days after but didn’t amend will - held under circumstanced 3 days was sufficient to amend will so was held it had been her intention not to include the child

Question 20

Stevenson’s Trs v Stevenson

Answer 20

Post natis rule: child can request to reduce whole will - personal right of the child only

Question 21

Lawson Exec v Lawson

Answer 21

Interpretation: in this case belongings couldn’t have included the house in question as testator didn’t own the house at the time of writing their will

Question 22

Couper’s JF v Valentine

Answer 22

Interpretation: designation by relationship (e.g my wife, elizabeth) not a condition

Question 23

Kerr v Ptnr

Answer 23

Artificial intestacy - deliberately renouncing will to claim legal rights (spouse renounced will in order to claim legal rights and get everything (there were issue that had been left legacies but by the time she’d claimed legal rights there was nothing left)

Question 24

Kerr v Mangan

Answer 24

Calculable estate? - won’t take into account heritable property abroad

Question 25

Campbell v Campbell’s Excrs

Answer 25

Multiple executors and big disagreement - court may remove from office but has to be more than disharmony (‘malversation like in trusts needed)

Question 26

Duthie’s Trs v Taylor

Answer 26

Implied revocation if later will doesn’t expressly revoke but contains inconsistent provisions

Question 27

Crozier’s Trustee v Underwood

Answer 27

• Key point: end said ‘all my other affect’
• Court had to interpret whether this sentences included 21 south hermitage st newcastleton – decided this on the basis that he mentioned his granddaughter lived with him at that house

Question 28

Nasmyth’s Trs v NSPCC

Answer 28

Ambiguous name in will would have to rectified with evidence of what was meant