Succession

Question 1

Explain the term ‘legacy’

Answer 1

The term legacy is normally found in testate succession I.e where the deceased individual deals with his/her estate by way of a will. A legacy is therefore something which a deceased person bequeaths in a will to a beneficiary.

Question 2

Name and describe the 3 types of legacy

Answer 2

A) specific legacy - where the deceased in his/her will bequeaths an item (or items) which are identifiable from all others of that class e.g my Ford Fiesta motor car registration BOB 1C to ......
B) general legacy - this is a bequest in which the subject matter of the bequest has no distinct individual character of its own to distinguish it from all others of the same kind - it is often a sum of money but is not confined to money e.g to Bob I leave £10,000 and to Alex I leave 20 kilos of sugar 
C) residual legacy - this is the bequest (or bequests) of whatever is left over of the estate after all the specific and general legacies have been paid e.g to Bob I leave the residue of my estate

Question 3

What is the problem with proposed bequest to Isha? (Regarding the car)

Answer 3

• Mohammed’s will does not make it clear as to which car is to be left to Isha and as he collects/restores vintage cars he potentially has many
• an attempt has been made to provide a specific legacy - but as it is unclear which exact car is to be left the legacy is therefore classed as uncertain and may fail.
• this is one situation in which the courts might allow the use of evidence from out with the will to clarify which car is to be given.
• a similar situation occurred in the case of Keillor v Thomson’s Trustee 1826
• in this case it was not clear as to whom a legacy had been left and so to determine who the testator intended to leave the bequest- evidence from out with the will was allowed
• the bequest could be easily rectified by specifying exactly which car is to be left including details such as the registration number

Question 4

What is the law relating to intestate succession?

Answer 4

• Primarily contained within the Succession (Scotland) Act 1964
• amended by the Civil Partnership Act 2004 to extend the rights available to a surviving spouse on intestacy to a civil partner
• the Prior Rights of Surviving Spouse and Civil Partners (Scotland) Order 2011 then increased the amounts a surviving spouse/civil partner can receive by way of prior rights

Question 5

Explain the 3 prior rights (intestate succession)

Answer 5

• the house right = ownership/tenancy of any house owned/tenanted by the deceased in which the surviving spouse/civil partner was ordinarily resident in at the date of death. This is up to the via,he of £473,000 calculated after deduction of any mortgage etc - but if you take the house you take the mortgage with it. If there’s more than one house which meets the criteria then the spouse/CP gets to choose - however if the house is a business asset then they do not receive the property but instead the value of up to £473,000.
• furniture/plenishings right = of any house owned by the deceased in which the surviving spouse/cp was ordinarily resident in at the date of death. Are allowed up to the value of £29,000 and this covers a range of things including furniture, crockery, linen, cutlery etc but excludes family heirlooms of the deceased. If there is more than one qualifying house they can choose the items from ONE house only but this can be a different house from the one chosen on the house right.
• the cash right = taken proportionately from any remaining heritable and moveable estate after the deduction of the other two rights. The exact amount is dependent on whether the deceased had surviving descendants - if none then shall be £89,000 - if there are then it shall be £50,000