Succession and Trusts Flashcards
MARCK v BELGIUM
ECHR breached because belgian law discriminated between legit and illegitimate kids
C v M
a close family member should have greater say than what happens to body that executor
CITY OF EDINBURGH COUNCIL v MARCEL
council have no discretion and have an obligation to bury bodies (where there is no other option)
GROSVENOR’S TRS
INTESTATE CASE
had to decide whether 2nd husband who had fallen out of contact had outlived deceased
HELD - he had outlived her and so estate had to be divided and given to his estate
PATERSON PETR
Forfeiture rule
woman killed spouse after long provocation
HELD - s5 of forfeiture act could be modified
MACHIN’S TRS
death doesn’t defeat debts
NAISMITH v BOYES
where there is partial intestacy, a person can claim LEGACY AND LEGAL RIGHTS over the intestate part of the estate
STEWART v BRUCE’S TRUSTEES
an individual has time to consider what to renounce
COATS TRS v COATS
where there is only one legitim claimant then no collation necessary
G APPLICANT
financial guardian asks to execute a will written when an incapax person had capacity
= court failed to clarify whether a financial guardian can write a will for someone where no will existed in the first place
T APPLICANT
old lady incapax - will left house to her son and was her biggest asset but because of her condition, house had to be sold meaning son wouldn’t get it
= court will approve amendment of will in this circumstance as was seen to be giving effect to the incapax before they lost capacity
H APPLICANT
court will not rewrite wills
LAUDER v BRIGGS
custody of will presumption seen to be upheld by the court
W v W
sol firm lost will when moving premises
court satisfied based upon evidence that it was possible to show on the balance of probs that will was lost (not destroyed) and because it was professionally executed there was a copy on file and a deed of execution
DRAPER v THOMASON
bottom of will said ‘connie’
held to be a valid signature because it was at the end
letter was also addressed to her sister and listed what she wanted to happen after she died - was held to have testamentary intention
RHODES v PATERSON
will signed ‘lots of love mum’
court accepted mum and also interpreted ‘do not lose this letter’ as signifying testamentary intention
MCLAY v FARRELL
will signed and then under signature there was a further direction
held signature signifies the end of a will and so anything that comes under that isn’t formally included and so not valid
DAVIDSON v CONVY
doctrine of adoption
number of instructions on single sheet of paper unsigned inside an envelope that was signed - envelope also said ‘my will’
= held by signing envelope she’d adopted the contents of the envelope so court gave effect to the instructions
CLYDE v CLYDE
revocation by destruction/presumed destruction where testator last known to be in possession of will but it can’t be found
DUTHIE’S TRS
implied revocation where subsequent wills don’t expressly revoke but have inconsistent provisions
STUART GORDON
woman v ill leading up to birth and died three days later
didn’t amend will to include new child
= post nattis rule rebutted - was held that her decision not to include child was intentional
STEVENSON’S TRS
post nattis rule
only child can bring action for reduction
LAWSON’S EXECUTOR
court will sit in testator’s shoes to determine what is meant in a will
= in this case ‘belongings’ couldn’t include the house the deceased had lived in latterly because they didn’t own that house when they wrote the will
CROZIER’S TRUSTEE
key point of interest in will: ‘all my other effect’
= court put themselves in the testator’s shoes to determine that this meant a property he lived in with his granddaughter was to be left to her
CATHCART’S TRS
ambiguous names in will?
court will put themselves in testator’s shoes and consider fact specific evidence to determine who is being referred to
NAYSMYTH’S TRS v NSPCC
ambiguous names
evidence needed in order to aid court in interpreting who is being referred to - in this case there wasn’t enough evidence to satisfy the court
COUPTER’S JF v VALENTINE
designation by relationships in will is not a condition
SAVAGE
in determining whether a cohabitant is entitled to the estate court will consider all facts e.g whether they’d received any other payments etc
KERR v MANGAN
won’t distribute heritable property that isn’t in scotland
RBS PLC, PTR
where trustee is remunerated the court will consider whether it is in the interest of the trust (and therefore beneficiaries) for you to step down and someone replace you
PARISH COUNCIL OF KILMARNOCK
truster can appoint a trustee who is a holder of office
MARTIN v FERGUSON’S TRUSTEES
trustees may be appointed by descriptive reference
KERR v CITY OF GGOW BANK
appointed trustee must accept office as trustee either EXPRESSLY or by IMPLICATION FROM ACTIVITIES
= someone who wishes to decline should do so expressly
prolonged inaction is insufficient as resignation
MCKENNA v RAFIQUE
case suggests that there maybe various means of resignation by a trustee that the court would be willing to accept
CIAROCCA v CIAROCCA
trustee acting in bad faith
complete inattention to duties and self dealing
obstruction to administration
= mere lack of cooperation or disharmony insufficient for removal = high hurdle
SHENKEN
where trustee is sole trustee and dies, their executor takes up offie with limited powers
IR v CLARK’S TRUSTEES
beneficiaries have a PERSONAL RIGHT against trustees
GGOW CITY COUNCIL
supports dual patrimony doctrine
MACPHERSON v MACPHERSON
no special wording needed for the creation of a trust but word ‘trust’ is used but isn’t essential
FINANCIAL SERVICES LTD v BOS
whether an arrangement is considered a trust depends on interpretation
ALLAN’S TRS
truster-as-trustee
declaration of trust must be intimated to at least one of the beneficiaries (orally is sufficient)
CLARK TAYLOR
for the creation of a trust:
- must be an asset in existence and the dedication of that asset or right to defined trust purposes
- beneficiaries defined
- must be delivery of trust deed or a satisfactory equivalent of delivery
MARQUES OF LOTHIAN’S CB
default powers listed in s4 only exercisable in so far as they’re not at variance with the terms and purposes of the trust
- where not expressly prohibited, purpose of the trust deed must be considered as a whole
THOMPSON v CAMPBELL
where they appoint an agent, trustees don’t incur liability for losses caused by negligence or fraud of an agent who they have legitimately appointed
OCCIDENTAL PETROLEUM
trustees can delegate administrative functions but not discretionary powers
SINCLAIR’S TRS
advances - trusts
where s16 is inapplicable CoS has similar power under nobile officium
WOLFE v RICHARDSON
where there’s more than one trustee decisions must be made by at least a quorum of them
WYSE
while a decision of majority of acting trustees will normally suffice, its important that all trustees are being consulted
= HELD - appointment of new trustees invalid due to lack of consultation
RAES v MEEK
trustees have a duty of care and must bring to administration the SAME DEGREE OF DILLIGENCE THAT A MAN OF ORDINARY PRUDENCE WOULD EXERCISE IN THE MANAGEMENT OF HIS OWN AFFAIRS
KNOW v MACKINNON
standard of care of trustees is OBJECTIVE
LEITCH v LEITCH
there is an essential duty to keep accounts implied in every trust
TOD’S TRS
beneficiaries are entitled to see the trust deed and to inspect accounts etc
MELVILLE v NOBLE’S TRS
trustee invested and then just left the investment without keeping an eye on it
= held to be in breach of trust because a reasonable person wouldn’t just let their own investments sit
DE FAZIO
agreement of all beneficiaries is needed for complete protection (when they have permitted a trustee to act auctor in rem suam). - and they all must be fully informed
MARTIN v CITY OF EDI DISTRICT COUNCIL
trustees should consider what is best for beneficiaries’ interest and what they do mustn’t be unduly influences by their own political, religious etc beliefs
LAMOND
in ultra vires breaches of trust, trustees are personally liable unless they can prove that they took all possible steps to establish the facts
WARREN
In ultra vires breaches of trust, trustees are personally liable unless they can prove that they obtained legal advice as to the extent of their powers
JOHNSTON
a transaction in breach of fiduciary duty is reducible by beneficiaries regardless of whether the trustee was acting in good faith
CHERRY’S TRS
if trustee profits from breach of fiduciary duty their profit must be paid into trust patrimony regardless of whether or not the trust patrimony has suffered a loss
SHARIF
there can be a petition for removal of trustee where there has been a SERIOUS breach of trust
MILLAR’S TRS
co-trustees have a duty to take steps if trust funds re misappropriated by other trustees
KNOX
imunity/exemption clauses in trust deeds
standard view in scotland is that no protection is given in cases of personal liability for consequences of acts of administration undertaken in bad faith or with gross negligence
CUNNINGHAM
intra vires contracts with 3rd parties
in principle 3rd parties are entitled to be reimbursed from trust estate
GORDON
intra vires contracts with 3rd parties
trust patrimony is liable unless trustee failed to disclose they were acting as a trustee (in which case they could be personally liable to the 3rd party)
BROWN
intra vires contracts with third parties
trustees may be personally liable if they don’t make clear to the 3rd party that they are dealing with them in their capacity as a trustee and so only trust patrimony is bound
MCCAIG
trust deeds are invalid where trust confers NO SUBSTANTIAL HUMAN BENEFIT to any individual or to the general public
AITKEN’S TRS
trust purpose deemed both extravagant and unreasonable so held not to be valid
MILLER’S TRS
where beneficiaries have an unqualified, vested right in fee to property, they can enforce payment of this even if trustees have instructions to the contrary
FRASER V ROSE
where a condition to a legacy appears unreasonable, it is unlikely to be given effect to
CATHCART
wills
deciding who is meant by vague reference/administrative error in a will - court will put themselves in the shoes of the testator to decide what was meant
MALCOLM
trustee who cannot be contacted need not be consulted
MAGISTRATES TOWN-COUNCIL OF ABERDEEN
trustees buying trust property is prohibited (conflict of interest)
WILLIAMSON
wills
no such thing as a mistaken signature
BROWRIGG’S EXCR
court reluctant to advise executor
REZAC’S EXCRS
power to sell held to be at variance with purposes of a will
