Succession Flashcards
Lex situs
where the property is situated
MacDonald v MacDonald
The categorisation of a piece of property as either moveable or immovable will be done based on the law of the place in which the property is situated
Lamb v Lord Advocate
In this case Mr and Mrs Grant both died in a fire. Mr Grant had left his estate to his wife and had no other living relatives. Mrs Grant’s parents survived their daughter but could not inherit through their daughter if it was proved she survived her husband. Mrs Grant had run back into the fire in an attempt to save her husband so it was held that on the balance of probabilities she had survived her husband and thus her parents could inherit
Qui in utero est, pro iam nato habetur
Qui in utero est, pro iam nato habetur – whomever is in the womb is regarded as having already been born
Elliot v Joicey
The qui in utero est, pro iam nato habetur rule can be invoked only for the benefit of the child in question and not for the benefit of any third party
Smith, Petitioner
Where a beneficiary has killed the deceased he will be disqualified from inheriting even if he is otherwise entitled under the rules of testate or intestate succession. This rule applies to both murder and homicide
Bankton, Institute 3, 8, 3
a person who has custody of a will but refuses to hand it over will be disqualified from inheriting
Bankton, Institute 3, 4, 4
legal rights cannot be defeated by any provision in the deceased’s will
Hog v Hog
A discharge of legal rights will bind any child of that child’s children who attempt to claim legal rights by representation. Where there has been a discharge of legal rights during the deceased person’s lifetime the effect is that the granter of the discharge is treated as dead.
Callander v Callander
Before 1964, intending spouses might, by means of an ante-nuptial contract, discharge in advance the rights of any child of the marriage to claim legitim. They can no longer do this
Kerr, Petitioner
A widow was left her husband’s entire estate in his will. The children of the marriage wished to claim their legal rights. The wife renounced her bequest under the will causing artificial intestacy. Upon intestacy, her prior rights extinguished the whole estate and the children received nothing.
White v Jones
A person who writes a will on behalf of a testator and gets it wrong owes a duty of care to the beneficiary or beneficiaries affected by the mistake in the will. They can therefore be sued in delict – one of the few instances where pure economic loss is recoverable. Testators do not themselves owe a duty of care to anybody who benefits under their will and thus this rule does not apply to homemade wills.
Boyle v Boyle’s Executor
any will made by a person without sufficient understanding will be void. Additionally a will that is subject to facility and circumvention and may be challenged by those having an interest, usually a relative who would benefit under the laws of intestacy or a prior will if it is set aside
Nisbet’s Trs v Nisbet
a will made by a testator in a lucid interval where their understanding briefly returns will be valid
Anderson v Beacon Fellowship
facility and circumvention may arise in the case of religious groups
Ross v Goslin’s Executor
For the doctrine of undue influence to apply there is no need to establish a weakness of the mind on the behalf of the testator. This is in contrast with the requirements of facility and circumvention.
Stewart v MacLaren
A solicitor who benefit under a will that he himself has drawn up has the onus of proving that he did not exercise undue influence if the will is challenged
Matthew v Council of the Law Society of Scotland
A solicitor may be held to have breached the rules of professional conduct if he prepares a will for a client under which he is to receive a significant remedy or share of the estate
Bell, Principles s.1820
It is not necessary for a testator to appoint an executor in their will for the will to be valid
Crum Ewing’s Trs v Bayly’s Trs
a party cannot claim both a testamentary provision and legal rights unless it is specified that they can in the deceased person’s will.
Simson v Simson
a will may be typed, printed, written in the hand of the testator or in the hand of somebody else. It may also be in a mixture of these different forms of writing.
MacDonald and Others v Master, High Court, Orange Free State Provincial Division
South African case where it was held that a will in electronic form with a digital signature is valid. However this is probably not the case under Scots law
McGinn’s Executrix v McGinn’s Executrix
one of the potential problems attendant upon a handwritten document is that all or part of the deed may be difficult to read. Where only part of the words are illegible, this will not detract from the validity of the remainder provided it is clear that the illegible parts can be severed from the legible remainder. Furthermore, a provision that expresses a mere wish will not be held as a condition attached to an otherwise clear legacy
Cunningham v Spence
a blind person is excluded from being a witness to a will.
Walker v Whitwell
the act of witnessing a will should immediately follow its signing so that they form one continuous process.
Gordon’s executor v MacQueen
a new will may revoke one or all of the prior wills of the deceased. In a case such as this it is important to take care to identify which will is being revoked.
Duthie’s Executor v Taylor
Where a deed does not expressly revoke a previous will but makes contradictory provisions, the earlier will may be revoked by implication to the extent of the contradiction. The courts are reluctant to apply the doctrine of implied revocation and will try to read the earlier and later wills as consistent if possible.
Robert and Gordon Howden v Mrs J Howden
Actions by the testator which will revoke their will include ripping it up or putting it in a fire
Naysmyth v Hare
The act of destruction of a will may be symbolic. For example the cutting off of a seal from a will even if what remained would look like a valid will if taken in isolation would still constitute revocation by destruction of the will.
Thomson’s Trs v Bowhill Baptist Church
Revocation may be confined to certain parts of the will only, i.e. where a section was cut out
Cullen’s Executor v Elphistone
If the destruction of a will was carried out by a third party who did not act on the instructions of the testator then it has no effect
Clyde v Clyde
If the will was known to be in the possession of the testator but after their death it cannot be found then there is the presumption that it was destroyed by them with intention of revocation
Pattison’s Trustees v University of Edinburgh
a will is not revoked when there is no intention to revoke it – for example where it is accidentally destroyed
Laing v Bruce
a will is not revoked when it is destroyed by a person who was insane at the timeof the destruction
Fotheringham’s Trs v Reid
Proof may be led that the destruction of part of a will was for a purpose other than revocation. In this case a woman scored out her married name in her will with the intent of replacing it with her maiden name. It was held that this did not revoke the will.
Condictio si testator sine liberis decesseritintestacy.
this deals with a situation where the testator dies with an unexpected surviving child. His principle applies where the testator has made a will which contains no provision for children who may subsequently be born to the testator. If children are born before the date of the wills execution it will be presumed that the testator intended to exclude them from inheriting. Unless the condictio testator sine liberis decesserit is rebutted then the whole will may be reduced with the result of intestacy.
Stevenson’s Trs v Stevenson
Only the unborn child can seek to use the condictio si testator sine liberis decesserit to reduce a will and it cannot be used for the benefit of any other relative
Stuart Gordon v Stuart Gordon
an example of a case where the presumptions found in the condictio si testator sine liberis decesserit were rebutted because it was shown that the testator had considered the birth of their child and had regarded it as well provided for
Ogilvie-Forbes v Ogilvie-Forbes
n this case Lord- President Clyde said that, ‘In the law of Scotland the ademption of legacies is a species of revocation by implication, and operates in the case of special legacies
Turner v Turner
An exception to the general rule of ademption. An attorney sold the house of a woman who had gone into care. It was not necessary to fund her care but it was a prudent act of administration. When she died the entire sales proceed had not been spent. In her will, the woman had left the house to one of her children. All the children would be entitled to the residue and the remaining children argued that the house had adeemed and the free proceeds had therefore fallen into the residue of which they would all get a share. However it was held by the courts that ademption had not taken place.
Hamilton and Others v Hamilton
Whatever the form of the will, the primary objective of construction is to find out the testators intentions, express or implied
Mair’s Trs v Aberdeen Royal Infirmary and Mental Hospital
The whole will should be read and so far as possible the interpretation of the clauses should be such that they are reconciled.
Buchan and Others v Mitchell and Others
a court will not go so far as to rewrite the testators will. In this case it was alleged that the wording of the will did not reflect the intentions of the testator. However the court dismissed this claim stating that ‘to let in evidence of this claim would be to assist in the making of the will for the testator, not to construe the will that he has made for himself.
Ramsey v Anderson
As far as is possible the courts will try to avoid setting aside a will on the grounds that it is too vague
Milne’s Trs v Davidson
A particularly liberal approach to construing a term of a will is taken in respect of charitable bequests
Milne’s Trs v Smith
A provision which expresses a mere wish will not be interpreted as a bequest
Stalkers Executors, Petitioners
the words used in a will should be given their normal grammatical meaning
Shepherd’s Trs v Shepherd
the terms of a will should be read in their natural sense
Cunningham’s Trs v Cunningham
the terms of a will must not be read in a strained or unusual manner
Campbell’s Trs v White
Debabtable how much emphisis can be put on the meaning of words identified in a previous case
Denholm’s Trs v Denholm
the way in which words in a will are construed changes over time. In a will drawn up in respect of a death in 1907 the term ‘carriage’ was construed to include motor vehicles however this is unlikely to be the case nowadays
John Wishart v Mr George Grant Minister of the Gospel at Rutherglen
the term ‘child’ is normally interpreted to mean the immediate child of the testator
Copland’s Executor v Milneotherwise
the term ‘cousin’ will mean 1st cousins unless there is testamentary evidence to prove that the deceased intended otherwise
Yule’s Trs, Petitioners
The term ‘child’ can also be construed to mean grandchild in rare cases
Croziers Trs v Underwood
the term ‘means and effects’ applies only to corporeal moveables. This is particularly the case when the will has been drafted by a solicitor. However the context of the will can also indicate heritage. Factors in favour of this wider interpretation will include indications that the settlement in the will was intended by the testator to be a universal settlement of all his affairs and the use of the terms in the phrase “all my other means and effects” in a will where the testator had already made a specific bequest of another item of heritage
Falso demonstration non nocet
a false or inaccurate description of a bequest or an inaccurate identification of a beneficiary may not invalidate a bequest
James Keiller v Thompson’s Trs
a bequest to a William Keiller, confectioner in Dundee was held to be a bequest to James Keiller. It was shown that James Keiller was a friend of the testator and that the testator was elderly and prone to making mistakes with names. The claim of the other party was not preferred even though he had once worked for James Keiller. This case is also an example of extrinsic evidence being admitted in court
Speaker’s Executor v Spicker
it was held that a bequest of a bureau and its contents and all of my private papers included a sum of £1815 found in the desk despite the fact that the beneficiary had already been left a legacy of £1000 in the will
Melvin v Nichol
a will speaks from the time of the death of the testator, it is of no consequence that the relevant funds are not contained in a fund at the time of the execution of the will in the case of demonstrative legacies
Right Hon. H. Elliot v Lord Stair’s Trs
where legacies are contained in more than one document, e.g. a will and subsequent codicil they are presumed to be cumulative
Gillies v Glasgow Royal Infirmary
The presumption that if two legacies are given to the same person of the same amount in the same document that the legacies are substitutional is rebuttable.
Cranston v Brown
If it can be proved that the testator knew that the thing he left as a legacy did not belong to him, then the legacy is interpreted as an instruction to the executor to purchase the thing from its owner and hand it over to the legatee
Meeres v Dowell’s Executor
It is not enough to show that a testator should have known he did not own a thing he has bequeathed in his will. He must have actually know he did not own it for legatum rei alienae to apply
Gordon v Hogg
Specific legacies are payable even if the result is that there is nothing left for the general legatees
McConnell’s Trs v McConnell
The numbering of legacies in a will is not of itself considered to indicate the order of priority in which they should be paid
Dr Monro v William Scott’s Executor
Charities do not get special treatment in terms of the order in which legacies should be paid
Drummond J F v Lord Advocate
The crown is the ultimate heir
Davidson v Convey
A will that is contained in an envelope, where the envelope is the part that is signed will be valid provided the court grants a decree that the will is self-proving
eadem persona cum defuncto
The executor is generally treated as being the same person as the deceased
Fraser v Rose
Where a condition attached to a bequest is contra bones mores, the condition will be void but not the legacy
Naysmyths Tr v NSPCC
charity, adduced evidence
Rhodes v Peterson
A letter can be concluded to have testamentary intent
