Succession General Points

Question 1

Melvin v Nicol

Answer 1

Demonstrative legacies

If I leave someone 1000 but only have 500 then the money can be taken from elsewhere to make up to that money, usually taken from a residuary clause, if there is none then free estate or intestate estate

Question 2

Buchan and others v Mitchell and others

Answer 2

Construction of wills

Express terms are important but courts can imply terms to be effect but will not go so far as to reinvent the will

Question 3

James Keiller v Thompsons’ Trs

Answer 3

Incorrect description of bequest of beneficiary does not mean that it lapses- man in Dundee’s name was wrong

Question 4

Speakers exx v Spiker

Answer 4

Specific legacies when constructing wills, they got all the private papers and the bureau but that also had money on it, he was allowed to keep that despite the fact he had already been given money

Question 5

Reabbet public Trs v Dunstones

Answer 5

Contents implies that the contents is incorporated, she could have car and papers but not the insurance policies

Question 6

Elliot v Lord Stairs

Answer 6

Cumulative - when someone had 2 wills the person can have both things

Substantial - when someone writes something twice the latter takes effect

Question 7

Cranston v Brown

Answer 7

Something you never owned

If you leave a legacy of something you never ones that that legacy fails unless it can be interpreted as an instruction

Question 8

Pension plan remunerations

Answer 8

May not have a will but always have a pension- tick box to say who gets your pension

Question 9

People in prison

Answer 9

Forfeiture act S1 says that unless you have murdered the deceased you can still inherit

Question 10

If you live separately from spouse

Answer 10

They can still inherit from you under both intestate and testate succession, divorce means termination and that person is treated as having predecesed you

Question 11

Issue

Answer 11

If a person is unable to inherit because they have died then their issue is able to inherit, legal rights best automatically - S11 1964 Act

Question 12

Gifts

Answer 12

If I make a gift in a will then the person becomes the owner immediately upon delivery

Question 13

Adopted persons

Answer 13

Successions Act 1964 S23

For all purposes that person is treated as the biological child for succession purposes

Question 14

Presumption of death

Answer 14

Scotland Act 1977

Where a person is missing or has been thought to have died has not known to be alive for the last 7 years then you can make a petition to the court

Question 15

Common calamities

Answer 15

Succession S Act 2016

Uncertainty of survivorship treated as failure to survive

Bequests may lapse into free estate if unknown who survived who

Also known as common calamities

Question 16

Kerr v Morgan

Answer 16

Succession does not include land situated outside of Scotland

Also cohabitation case