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Succession and Trust Law > Testaments > Flashcards

Testaments Flashcards

Lecture 06

1
Q

Sivewright v Sivewright’s Trs

A
  1. “A testator must be able to exercise a rational appreciation of what he is doing. He must understand the nature of his act. But, if he does, he is not required to be highly intelligent. He may be stupid, or he may even be improperly, so far as ethics go, actuated by ill-feeling. He may, again, make his will only in the lucid interval between two periods of insanity. The question is simply whether he understands what he is about. On the other hand, if his act is the outcome of a delusion so irrational that it is not to be taken as that of one having appreciated what he was doing sufficiently to make his action in the particular case that of a mind sane upon the question, the will cannot stand”
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2
Q

Somerville v Allan

A
  1. A will was reduced due to lack of capacity, shown by giving factually incorrect reasons for alterations, thereby showing that the pursuer’s mental capacity at the time of the will was impaired: “did not know what she was about”
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3
Q

G, Applicant 200

A
  1. An 82-year-old man was incapacitated
  2. A financial guardian was appointed
  3. He was allowed to execute a will on behalf of the incapax
  4. In 2004, the incapax had (invalidly) executed a will
  5. In fact, it was defective because of faults made by the solicitors
  6. The court was prepared to allow this guardian to execute a will on his behalf in the terms of the defective 2004 will
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4
Q

T, Applicant 2005

A
  1. An 81-year-old woman who had Alzheimer’s was incapacitated
  2. Her son asked whether the court would allow the execution of an amendment of the will
  3. The problem was that the general intention of the will was that the incapax wanted to leave the vast majority of her estate to her son
  4. She left him her house
  5. When she had to go to a care home, the house was sold
  6. A lot of money was made, which went into the bank account of the incapax
  7. Her son was not going to get anything
  8. Would the court allow an amendment to ensure the spirit of the will was followed?
  9. The court allowed the amendment because it was quite clear that that is what the incapax would have wanted
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5
Q

H, Applicant 2011

A
  1. The will left the house to the applicant
  2. The house had to be sold
  3. This time, the court refused to allow an amendment
  4. There was evidence that clearly pointed to the fact that the incapax only intended that the house was to go to the applicant, not any proceeds of sale
  5. The court will only give effect to the intention of the incapax, and in this case, it would be against the intention of the incapax
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6
Q

P’s Guardian

A
  1. An application to amend a will was refused as the intentions of the incapax were clear
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7
Q

Ward 2014

A
  1. There was no will
  2. Would the court allow a person to draft a will on behalf of an incapax?
  3. The court did not allow this as there was no evidence of testamentary intent, and it was not clear what the incapax would have wanted
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8
Q

Foley v Costello

A
  1. “I think that the law of Scotland requires subscription as the essential and only admissible evidence of a concluded expression of will on the part of the testator … In my opinion the rule is inflexible, no subscription, no will, and to admit the consideration of facts and circumstances to modify that rule would be very inexpedient and dangerous” (per Lord Trayner)
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9
Q

Draper v Thomason

A
  1. “By the way while speaking of dying! Should anything happen to me, (which it will one day) I haven’t made a Will, but everything I have is for Billy. Knowing that he will do the right thing”
  2. This was a letter to the deceased’s sister signed ‘Connie’, which was held to be a valid signature
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10
Q

Rhodes v Peterson

A
  1. “Dearest Dorothy, I am so glad you are coming up for a break next month and it will be lovely to see you again. I have been thinking a lot about you recently and I am concerned about your future. Security especially as you have no home you can call your own … Now I feel better having at least got this down on paper. Do not lose this letter … Lots of love, Mum”
  2. “Mum” was held to be a valid signature
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11
Q

McLay v Farrell

A
  1. The will was construed like this
    I leave to
    Lizzie McLay Farrell £50
    C Herken £50
    Robert Farrell £20
    Jane McLay (the signature of the defunct)
    All to Anne McLay
  2. What was the meaning that could be given, if any, to “all to Anne McLay”?
  3. Subscription is at the bottom of the document
  4. This is so people cannot write under your signature
  5. The court held that they were going to ignore this last provision
  6. Anything that is below the signature of the testator will not be valid
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12
Q

Davidson v Convy

A
  1. The deceased had written on a single piece of paper some instructions as to what would happen to her estate
  2. She had not signed the paper
  3. She put the paper in an envelope
  4. She wrote “my will” on the envelope and signed the envelope
  5. The court applied the doctrine of adoption, and the piece of paper was adopted into the envelope
  6. This created a valid will
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13
Q

Downey’s Excrs [2021]

A
  1. The court held that codicils must still show testamentary intention
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14
Q

Williamson v Williamson

A
  1. The court held that there is no such thing as a ‘mistaken’ signature
  2. The testator was called R Williamson
  3. The witness was called D Wilson
  4. For reasons unknown, the witness signed as DCR Williamson
  5. It was argued that the court should allow the validity of the witnesses’ signature because it was just an error
  6. The court held that they could not do this as there is no such thing as a mistaken signature
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15
Q

W v W 2022

A
  1. The will was lost during a move of office premises by solicitors
  2. A copy of the will had been made
  3. The action of proving the tenor was successful
  4. There was no issue with the presumption of destruction here because the will was not in the possession of the deceased
  5. It was held by the solicitor
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16
Q

Lauder v Briggs

A
  1. The deceased made a will in 1978
  2. He moved house in 1989 and took possession of the will
  3. He died in 1995, and the will couldn’t be found
  4. There was an action of ‘proving the tenor’
  5. There is a presumption that a deceased in possession of their will has destroyed it if it can’t be found
  6. It is only a presumption
  7. The presumption can be rebutted by evidence
17
Q

Draper v Thomason

A
  1. The will was a letter to sister Julia some years before the testator’s death
  2. “By the way, while I’m speaking of dying! Should anything happen to me (which it will one day) I haven’t made a will, but everything I have is for Billy, knowing he will do the right thing. Connie”
  3. The court held that this showed testamentary intent
18
Q

Rhodes v Peterson

A
  1. “Dearest Dorothy … I have been thinking a lot about you recently and I am concerned about your future … As the boys have their own houses … I want you to have 63 Merchiston and all the contents … When I am gone so that I can rest in peace in the knowledge that you are not homeless … I am not going to say anything to John or Angus about this … I feel better having at least got this down on paper. Do not lose this letter … lots of love, Mum”
  2. The instruction “do not lose this letter” strongly suggested this was supposed to be a will, and thus showed testamentary intent
19
Q

Jamieson’s Exrs 1982

A
  1. Concerned a letter to the solicitor
  2. “I should like if the sum of money left to St Mary’s on the Rock was doubled, also that left to Mr David Alexander to be doubled. If the residue of my estate to be divided between my four cousins exceed 5000 pounds, I should like that excess amount to be divided between the two charities in my will. I do hope that this can be done. I have been having some pain of late and I just wanted to note this down. ER Jamieson 22.3.80”
  3. This was a letter of instructions to the solicitor, so not a valid will, even though it does show testamentary intention and was validly subscribed
20
Q

Barker’s Exrs v Scottish Rights of Way Society Ltd

A
  1. A formal will was executed in 1985 (revoking older wills) with solicitors
  2. In 1991 (just before death), the deceased sent a copy of an old will (circa 1983) with a number of handwritten amendments and instructions to open another document with still further instructions to the solicitor
  3. It was held that the 1991 instructions were effective to pass the residue of the estate to the designated charity
21
Q

Hamilton Ptnr 2015

A
  1. Concerned a notebook, in which one page was this
    “20/01/12
    Nearly 51?
    Life is s*** at this time!!!
    Please remember. If Anne is still alive, I want her to have my wealthy remains: the house, pension, savings and everything else…
    I hope my family accept this…
    IT IS MY WISH
    Melanie Gibson
    20/01/12”
  2. The court held that it showed testamentary intention, and that it was validly subscribed
22
Q

Clyde v Clyde

A
  1. The deceased, George Clyde, executed a will in 1936 and left everything in that will to his nephew James Clyde, who was also his business partner
  2. In 1949, the deceased asked for the will back
  3. In 1951, he died, and there was no sign of the will
  4. The presumption of destruction was applied
  5. The will was found to have been destroyed
  6. Two copies of the will were found, but because of the Lauder case, copies cannot be seen as being as the will
  7. “The benevolence of the deceased towards the pursuer is insufficient to overcome the presumption that this deed, which was in the custody of the deceased and was not forthcoming at his death, was destroyed by him animo revocandi” (per Lord Guthrie)
23
Q

Bruce’s JF v LA

A
  1. The 1945 will was revoked by the 1949 will
  2. The 1949 will went missing and the 1945 will was revived
  3. This rule has now been abolished by the Succession (Scotland) Act 2016, section 5
    i. This section applies where
    a. A will, or part of a will, is expressly or impliedly revoked by a subsequent will, and
    b. The subsequent will, or part of it, is revoked
    ii. The revocation of the subsequent will, or part of it, does not revive the earlier will or (as the case may be) the revoked part of the earlier will
24
Q

Duthie’s Trs v Taylor

A
  1. Both wills were valid
  2. The legacies that were the same were given effect to
  3. For the legacies that were different, the newer will was given effect to
25
Q

Stuart Gordon v Stuart Gordon

A
  1. The testator knew she was pregnant when she wrote her will
  2. There was a lot of evidence that she thought about the child she was carrying
  3. She did not include the child in her will
  4. When she died, the court held that this was what the deceased had wanted
  5. The presumption was rebutted successfully
26
Q

Milligan’s JF v Milligan

A
  1. The child was born, and the testator lived a further 10 years
  2. The argument was that they did not change their will for 10 years, knowing the child was alive
  3. The passage of time was not enough on its own to rebut the presumption
27
Q

Stevenson’s Trs v Stevenson

A
  1. Only a child or their representative can challenge the will
28
Q

Elder’s Trs v Elder

A
  1. The deceased had two children from a previous marriage
  2. This was not enough to rebut the presumption
  3. The presumption is still applicable even if there are children already
29
Q

Nicolson v Nicolson’s Trx

A
  1. A conditio revoked the second will
  2. The first will was operative
30
Q

Greenan v Courtney

A
  1. An example of the conditio doctrine being given effect to in modern times
31
Q

Finnie v McClure

A
  1. The solicitor had made a mistake in what the deceased had instructed
  2. There was plenty of evidence between the deceased and the solicitor that a clerical error had occurred
  3. The court said that this could be rectified because all the evidence was in the email
32
Q

White v Jones

A
  1. A solicitor can be liable to disappointed beneficiaries
  2. The testator had asked the solicitors to draw the will and make sure to leave property to certain beneficiaries
  3. The solicitors failed to do so
  4. The testator died, and those people lost out
  5. The beneficiaries brought a claim against the solicitors
  6. The House of Lords held that a solicitor in this case did indeed owe a duty of care to those beneficiaries
33
Q

Holmes v Bank of Scotland

A
  1. The court held that the decision in White is applicable in Scotland
  2. A bank had been asked to make a will on behalf of the niece and nephew of the testatrix
  3. They did not do so
  4. She died two weeks after giving the instruction
  5. The court held that the duty of care was owed
  6. The case settled
34
Q

Steven v Hewats

A
  1. White applies in Scotland, and applies to inter vivos gifts where there is no other means of recovering the loss
  2. The solicitors made a mistake in advising
  3. They owed a duty of care to the people who were supposed to benefit

Succession and Trust Law (10 decks)

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