testaments Flashcards
age of legal capacity s.2
12 years old to make a will
g applicant
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
t applicant
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.
h applicant
left the house to son but wasn’t intention to benefit son generally cout will not allow the rewrite CLEAR intentions of the testator
ps guardian
application to amentd was refused as intent of P was clear
ward
application to draft a will on behalf of incapax concluded testamentary intion s.1(4a)
A CONCLUDED EXPRESSION OF WILL OF THE TESTATOR
rowa (1,1)(2,1)(7,1)(7,2)(3,2)(31a)
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
foley v costello
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
draper v thomson
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
Rhodes v patterson
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
mclay v farrel
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
Davidson v convy
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
burnts trs v mckenna
CODICILS
s.9 1995 act
NOTORIAL EXECCUTIONsometimes a testator is physically unable to execute - not pay sol can pay on behalf of testator
Williamson v williamson
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.
lauder v briggs
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!
draper v thomason
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
Rhodes v paterson
“I feel better having at least got this down on paper” debateable testamentary intent
donot loose this letter testamentary intention clear
jamiesons ex
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
barkers v Scottish rights of way society
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
stair
REVOK. the testator can change there mind expressly or implicitly up until the point at which they die
clyde v clyde
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
clarks ex vclark
express revok without destruction.
bruce jf v la OLD LAW
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
duthies trs v taylor
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
condition so testator sine libris decesserit
draw up will child challenge implied docterin of revok gurantee presumption of revok post habbis rule CAN REBUT PRESSUPTION
stuart Gordon v stuart gordon
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
milligans JF v milligan
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
greenan v courtney
REVOK. redo the testament who had two children with a mother= wife 2
wife 1 = to benefit. = a condition sine libris decesserit
nivol v nicol
REDUCTION- deceased ex 2 wills child born after 2nd will . 1st will took affect 2nd will revoked.
reduction
forgery insanity force fear undue influene facility and circumvention offside goals rule always advantage someone else
wheldeen ex v spensor
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!
s.3/4 suc scot act
change in the law allows rectification of a will in certain circumstances so that gives effect to the testators instructions WITHIN 6 MONTHS
MARLEY V RAWLINGs OLD LAW
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
white v jones
sol duty of care POTENTIAL LEGATEES:
DID NOT EXECUTE WILL BEN LPST ON PROPETY
holmes v bank of scot
sol duty of care POTENTIAL LEGATIES:
DUTY OF CARE WILL APPLY QUALLY IN SCOTS LAW
Milligans ex v hewarts
sol duty of care to ex?
will substitutes
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
s.32(3a) sol scot act
s.101-112 reg of will writing (NOT IN FORCE)
s90-100 legal services scot act
anyone can prep a will on behalf of someone else, have to be capx, often have to be sol but not always.
reg13 SS1 2000/121
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
