testaments

Question 1

age of legal capacity s.2

Answer 1

12 years old to make a will

Question 2

g applicant

Answer 2

elderly became incapax for financial guardian to execute will on behaf of an incapax person. execute will= material defective
sol argued the will was defective.
will disinherited the person they wanted to inherit disinherit the person they wanted to inherit. court agreed

Question 3

t applicant

Answer 3

codicil to an incapax allowed to ensure it rewrite of trestiment house = sold to pay for care costs. will states that she was the MAIN ben to be her sonwhich at the time had been ID as the house. the court allowed the rewrite as her intentions were clear.

Question 4

h applicant

Answer 4

left the house to son but wasn’t intention to benefit son generally cout will not allow the rewrite CLEAR intentions of the testator

Question 5

ps guardian

Answer 5

application to amentd was refused as intent of P was clear

Question 6

ward

Answer 6

application to draft a will on behalf of incapax concluded testamentary intion s.1(4a)
A CONCLUDED EXPRESSION OF WILL OF THE TESTATOR

Question 7

rowa (1,1)(2,1)(7,1)(7,2)(3,2)(31a)

Answer 7

A will must be
in writing 
must be subscribed validly
subscribed = signed at the end of the last pg with full name
sign intial
witnessed at the end 
bears to bee subscribed by the granter

Question 8

foley v costello

Answer 8

I think that the law of scot rrquires sub scription as the essential and ONLY admissible evidence of a concluded expression of a will. NO SUBSCRIBTION, NO WILL

Question 9

draper v thomson

Answer 9

by the way of mentioning dying should anything anything happen to me haven’t made a will but I leave everything to BILL SIGNED CONNIE
courts held CONNIE was a valid subscription usual way she would sign

Question 10

Rhodes v patterson

Answer 10

Dorothy - signed letter learning estate signed MUM
court held nominal was for her to sign as MUM= valid
MUM to daughter = normal way by signing

Question 11

mclay v farrel

Answer 11

1 leave x £50, x£50, signed P then below subscription wrote
: all to ann mcClay validly
comes pre subscription james mcclay = valid testament
but anything bellow valid subscription
= discented
subscribe a doc alters an existing testamentary doc

Question 12

Davidson v convy

Answer 12

ADOPTION. principle adopt it usinganother deed. adoption handwritten note acknowledged to be in writing of testator. in UNSEALED envelope with AGNUS BESSIE SMITH. inside a HANDWITTEN letter NOT SUBSCRIBED. HELD, valid adoption of the envelop unlikely the court would do this had the letter been TYPED

Question 13

burnts trs v mckenna

Answer 13

CODICILS

Question 14

s.9 1995 act

Answer 14

NOTORIAL EXECCUTIONsometimes a testator is physically unable to execute - not pay sol can pay on behalf of testator

Question 15

Williamson v williamson

Answer 15

no ssuch thing as a mistaken signature testator R WILLIAMSON witness actual name D William son signeed DCR Williamson
court refused to suggest that the witness signature meant wilson.

Question 16

lauder v briggs

Answer 16

1978 will sol kept it. moved house she wanted to take it with her. 1985 she died they couldn’t fid will. BUT sol kept a copy.
thus 1978 quite clewar proving tenor.

HELD that it was presumtption it was destroyed!

Question 17

draper v thomason

Answer 17

INTENT
letter to sister Julia some years before death.
I haven’t made a will but everything I have I leave to billy
read in context = testamentary intent
“I haven’t made a will” suggests no concluded testamentary intent

Question 18

Rhodes v paterson

Answer 18

“I feel better having at least got this down on paper” debateable testamentary intent
donot loose this letter testamentary intention clear

Question 19

jamiesons ex

Answer 19

LETTER TO SOL
I should
I like
I hope
I wish
just wanted to note this down 
all indicate NO testamentary intent JUST A LETTER

Question 20

barkers v Scottish rights of way society

Answer 20

if ann is still alive= had a person to bestow
I hope my family accept this= final decision
it is my wish
subscribed
NOTE BOOK pg
TESTAMENTARY INTENT

Question 21

stair

Answer 21

REVOK. the testator can change there mind expressly or implicitly up until the point at which they die

Question 22

clyde v clyde

Answer 22

REVOK by destruction. PRESUMPTION OF DESTRUCTION. had will in favour of nephew left with sol. then decided to hold it at house. died they found 2 copies of the will both leaving substantial estate to nephew. BUT not find the final will. nephew and deceased relationship not deteriot. BUT nephew WAS NOT ABLE TO GET OVER PRESSUMTION OF DESTRUCTION.

HELD deliberately destroyed

Question 23

clarks ex vclark

Answer 23

express revok without destruction.

Question 24

bruce jf v la OLD LAW

Answer 24

express revok s. 5 suc scot act
1945 express revok in `1949 will. the 1949 will then goes missing. they state it was presumed missing and the will stands.
s.5=if the 2nd will goes missing then the first will will NOT replace it

Question 25

duthies trs v taylor

Answer 25

Implied revok if subsequesnt testamentary writ does not expressly revok but contains inconsistient prov
ex testament in 2000
THEN another in2015
2 WILLS
TRY AND RECONCILE THE 2 WILLS
IF THEY CANT THE EARLIER = REVOKED

Question 26

condition so testator sine libris decesserit

Answer 26

draw up will child challenge implied docterin of revok gurantee presumption of revok post habbis rule CAN REBUT PRESSUPTION

Question 27

stuart Gordon v stuart gordon

Answer 27

ill health during preg. drew up will. did not take child into account. she knew she would have a child and knew she was v. unwell= presumption REBUT

Question 28

milligans JF v milligan

Answer 28

child born lives for 10 years. will not changed. read in such a a way that this was deliberate.
Held that passage of time was not enough to rebut the presumption
Condition sine libris decesserit

Question 29

greenan v courtney

Answer 29

REVOK. redo the testament who had two children with a mother= wife 2
wife 1 = to benefit. = a condition sine libris decesserit

Question 30

nivol v nicol

Answer 30

REDUCTION- deceased ex 2 wills child born after 2nd will . 1st will took affect 2nd will revoked.

Question 31

reduction

Answer 31

forgery
insanity
force fear
undue influene
facility and circumvention
offside goals rule
always advantage someone else

Question 32

wheldeen ex v spensor

Answer 32

offside goals rule. made gratiously or in badfaith where someone agrees to leave a thing to someone and executes to someone else NEEDS PROOF BEFORE ANSWER!

Question 33

s.3/4 suc scot act

Answer 33

change in the law allows rectification of a will in certain circumstances so that gives effect to the testators instructions WITHIN 6 MONTHS

Question 34

MARLEY V RAWLINGs OLD LAW

Answer 34

law reform s.8 ONLY way of amending a will in scot at the time.
rectification was not allowed merely because they signed the wrong one partial reduction/ declarator

Question 35

white v jones

Answer 35

sol duty of care POTENTIAL LEGATEES:

DID NOT EXECUTE WILL BEN LPST ON PROPETY

Question 36

holmes v bank of scot

Answer 36

sol duty of care POTENTIAL LEGATIES:

DUTY OF CARE WILL APPLY QUALLY IN SCOTS LAW

Question 37

Milligans ex v hewarts

Answer 37

sol duty of care to ex?

Question 38

will substitutes

Answer 38

joint accounts- SURVIVOR BECOMES HOLDER
trusts- PROPERTY GOES TO TRUST HOLDER
special dest- 
life assurance-PAY OUT PARTICULAR PERSON
nomination- 
succession obli- OBLIDGE YOURSELF TO LEAVE SOMEONE PROPERTY

Question 39

s.32(3a) sol scot act
s.101-112 reg of will writing (NOT IN FORCE)
s90-100 legal services scot act

Answer 39

anyone can prep a will on behalf of someone else, have to be capx, often have to be sol but not always.

Question 40

reg13 SS1 2000/121

Answer 40

A REG EU lawyer is not entitled to prep a will for rem by virtue of s.6(1) unless prof title part of den/ger/ire/Austria/fin/swe/cypr/ice/lich/nor/slov