Testate Succession Flashcards by Amy Maitland

What is needed for formal validity of a will?

The Requirements of Writing (Scotland) Act 1995 s.1:
1) Subscription
2) Must be in Writing
3) Witness/Witness signature (probativity under s.3(2).

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What is a codicil?

A document that varies a will

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Davidson v Convoy 2003 SLT 650.

An envelope which stated ‘My will: Agnes Bess Sim’ contained an unsigned document of testamentary nature.

It was held to be validly executed.

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what is animus testandi?

The intention to test (create a will).

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Draper v Thomason 1954 SC 136.

A letter stating “everything I have is for Billy” was held to exhibit testamentary intention.

The full excerpt:

“… 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.”

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Rhodes v Peterson 1972 SLT 98.

Letter case, held to be a valid testament, even though there was no formal action taken to implement the contents.

NOTE: as this letter was signed ‘mum’ it would not be probative in the court if there was a challenge.

Full excerpt:

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 Merchieston 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.

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Jamieson’s Exrs 1982 SC 1.

This was a letter to their solicitor setting out their wishes, but the court held that as it was looking to a future deed being executed, it was not valid. Wording is important.

Full Excerpt:

“– 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. E R Jamieson 22.3.80.”

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Hamilton Ptr 2015 SLT (Sh Ct) 176

Notebooks: concluded testamentary intention.

Full excerpt:

0/01/12– Nearly 51?– Life is s***39 at this time!!!
*Please remember. If Anne is still alive, I want her to have my wealthy
remains 40– the house, pension, savings and everything else…
I hope my family accept this…
IT IS MY WISH.
Melanie Gibson

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What can be raised if a will is lost?

An action can be raised to “prove the tenor”

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What is animo revocandi?

The presumption that a missing will was destroyed by the testator.

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What is testacy?

When an individual makes a will before death.

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What happens once a will is revoked?

Succession (Scotland) Act 2016 (s.5) the first will dies, it cannot be relied on later.

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What happens upon divorce to a legacy gifted in a will?

Succession (Scotland) Act 2016 (s.1) divorce = predeceased.

HOWEVER, under s.1(3) it may still be valid if it is clear that the deceased wanted the spouse to have the legacy regardless.

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What is condictio si testator sine liberis decesserit?

The idea that if a child is born after the implementation of a will, it is voidable at their instance.

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How can the presumption of condictio si testator sine liberis decesserit be overturned?

McKie’s Tutor v McKie (1897) 24 R 526

“the presumption can only be displaced by something that amounts to a tangible and clear expression of the testator’s wish that his will should subsist”

Greenan v Courtney 2007 S.L.T. 355

[49] “Oral utterances would not be constitute examples of clear and tangible expressions of intent.”

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What is the principle that falsa demonstratio non nocet?

‘An erroneous description does not matter’

This means that the legatee just need to be described to identify them.

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What happens where description’s of legatee’s are not sufficient to identify them?

Cathcart’s Trs v Bruce 1923 SLT 722: Evidence can be led to show who was intended to be a legatee.

Why is probativity of a will needed?

Succession (Scotland) Act 1964 (s.21A): To allow it to be confirmed by the court.

Couper’s JF v Valentine 1976 SC 63

Even though a relationship ceases, the legacy may still be valid. It depends on the intention on that title being a condition to the legacy.

Ormiston’s Exr v Laws 1966 SC 47.

Will stated individual as his fiancé, she never was and married someone else. The legacy was still held to be valid. Again, intention of that title to be a condition?

What is rectification?

Succession (Scotland) Act 2016 sections 3 & 4:

Rectification is when, on application of an individual, the court alter the deed to fit the intention of the testator.

What is the limits to rectification?

Succession (Scotland) Act 2016 (s.3(1)(a)): The will must have been written at the instruction of the testator and not by them.

Is an executor liable under rectification?

Succession (Scotland) Act 2016 (s.8(7)): not so long as they distributed the property in good faith in line with the since rectified will.

What is a general legacy?

For a general quantity. There is a subcategory of general legacies known as a ‘pecuniary legacy’. This is for a general sum of money.

What is a special legacy?

A legacy of particular property or class of property.

What is a universal legacy?

Where the entire estate is left to one person.

What is a residuary legacy?

This is everything left after all claims on the estate.

What is a demonstrative legacy?

This can be seen as a sub-class of a pecuniary legacy. It is a specific amount of money that is to be taken from a particular source.

What is a conditional legacy?

This can be attached to any other type of legacy and just places a condition on when the legacy can be received. This can place the assets in a trust in interim until such conditions are fulfilled.

When is a condition in a legacy void?

Where it is 'contra bonos mores' - contrary to good morals. It will then be treated as 'pro non scripto' (as if not written). This then frees the condition, and allows the legatee to claim without the condition.

Fraser v Rose 1849 11D 1467

Condition: Legacy would be forfeit if the daughter lived with her mother, held to be invalid. Evidence showed mother was of good character and there was no real reason for this.

Balfour's Trs. v Johnston 1936

Condition that her child was to take no further interest in a non-biological child she cared for. However, in contrast to Fraser, there was no blood relation and so it was upheld.

What is abatement?

When there are insufficient funds in contrast to what was provided in the will, meaning the sums must be scaled down.

What are the 3 rules to abatement?

1) residue abates first 2) general legacy abates before special legacies 3) Legatees of a particular class will have pro rate abatement (equal suffering)

What is the order of abatement?

1. residue 2. general (pari passu) 3. Demonstrative 4. Special

What is Ademption?

When an asset in the will no longer belongs to the deceased.

Cobban’s Exrs v Cobban 1915 SC 82

89–90 per Lord Dundas: Ademption is a matter of fact, not intention, thus it is a simple fact of if the asset is in the testators patrimony at the date of death.

What is legatum rei alienae?

'legacy of someone else's property'. Meaning, the testator never owned the property.

What is the effect of legatum rei alienae

It can be construed as instructions to acquire the property in some cases (Erskine III, 9, 10) Depends on if the testator knew they did not own the asset. ‘By the Roman law, if one bequeathed a subject which he knew did not belong to himself, the legacy had this effect, that the heir must either have purchased it for the legatee, or paid its value to him if it could not be purchased … Where the testator … believed the subject to be his own, which in dubio is to be inferred from his act of bequeathing, neither the thing itself, nor its value, could have been claimed from the heir … These rules… hold also by the usage of Scotland.’

What is an express destination-over?

This is a term in the will stating that if one individual dies, then it will pass to another. I.e. 'to Gemma whom falling to Jessica'. If Gemma predeceases, the asset goes to Jessica.

What is a survivorship destination-over?

This is when the testator leaves assets to individuals equally, falling to the survivor. Meaning if one predeceases, their share passes to the other.

What is an implied destination-over?

Two types: Accretion - Where it is presumed where one individual in a class of legatees predeceases, that the other would inherit their share. But this is a rebuttable presumption if intention shows otherwise. Severance - 'equally between them' often excludes accretion. Alternatively: There is a presumed destination-over where there is a legacy to the child of the testator who predeceases to the grandchildren.