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
