Testate succession

Question 1

Hay v Duthie

Answer 1

1. “The difference between saying that the Court does not allow parole evidence to show what the testator intended, but that it does allow, in suitable cases, investigation by parole into what the words used by the testator were intended to mean, although fine, is a very real one … There is no doubt that certain investigations are usually allowable, as to the state of the testator’s family and the surrounding circumstances of the making of the will. This is often absolutely necessary for the proper understanding of the will, and it has been for generations accepted that the proper exposition of a testament requires that the interpreting court should be put, as it were, into the testator’s chair and given an outlook based on the testator’s knowledge” (per Lord Carmont)

Question 2

Lawson’s Executor v Lawson

Answer 2

1. The will said “I, Janet Walker Lawson, state the following to be my will after all the expenses are paid incurred by my death. I appoint my brother, Thomas Lawson, 47 Wyke Road, Weymouth, to be Executor, and state that he is to receive all my furniture, belongings, etc. I state that all money I leave has to go to the Edinburgh Royal Infirmary. Signed in my own handwriting, Janet Walker”
2. The house went into intestate succession and went to the deceased’s brother
3. The furniture also went to the brother
4. The testator left all “money” to Edinburgh Royal Infirmary
5. What she meant by “money” was anything that was not corporeal property
6. The brother claimed everything and conceded cash money that was present in the house to go to Edinburgh Royal Infirmary
7. The court said to look at her circumstances
8. One of the things was that when she wrote a will, she did not own a house
9. She could not have meant heritable property
10. The house did not come to him under the will, but the court did award him the house as the intestate heir
11. The court held that what she meant by “money” was not restricted to cash in the house
12. Money meant cash, but also everything she had in her bank account and her financial investments

Question 3

Crozier’s Trustee v Underwood

Answer 3

1. The will said “I Arthur Underwood residing at 21 South Hermitage St Newcastleton, on the fifteenth day of January nineteen hundred and twenty one year for the settlement of my affairs on my Death do hereby give and bequeath my Daughter Grace, Wife of Thomas Armstrong, Chollerton staton My House, No. 6 South Liddle Street Newcastleton To my granddaughter Charlotte, Wife of Robert Crozier Mason residing their also all my other affect except the clock which I give of my Great granddaughter Jean Crozier”
2. To whom, if anyone, was the house to go?
3. The court held that the house should go to granddaughter Charlotte because the words “residing there also” was enough to carry the house (because she lived there at the same time)
4. “Residing there also” was a reference back to 21 South Hermitage St Newcastleton

Question 4

Cathcart’s Trs v Bruce

Answer 4

1. The testator had left a residuary legacy in favour of “the children of General Alexander Fairlie Bruce”
2. There was no such person
3. The legacy was claimed by the children of General Alexander James Bruce and Alexander Fairlie Bruce
4. General Alexander James Bruce had sons between the ages of 12 and 24 and Alexander Fairlie Bruce had sons between the ages of 34-50
5. The court will look at surrounding evidence
6. A letter from the wife of the testator referred to the sons as “young men”
7. The court held that the deceased must have meant the General’s sons

Question 5

Nasmyth’s Trs v NSPCC

Answer 5

1. The testator had left a legacy to the National Society for the Prevention of Cruelty to Children
2. That charity only operated in England
3. There was a Scottish equivalent of the charity: the Scottish National Society for the Prevention of Cruelty to Children
4. The deceased had very little contact with England
5. The deceased had written the name of the English charity in the will, but the pursuer tried to argue that they must have meant the Scottish charity
6. The court was somewhat sympathetic
7. Crucially, they hear evidence about the meaning of words
8. In this case, there wasn’t an error that was self-evident in the will
9. The court did not have enough evidence to show that this is not what the testator meant
10. The wording was adhered to in the literal sense

Question 6

Couper’s JF v Valentine

Answer 6

1. The testator left a legacy to “my wife, Mrs Dorothy Couper”
2. They subsequently divorced, and she was no longer his wife
3. Were those words “my wife” a condition of the legacy?
4. The court held that they weren’t
5. “Dorothy Couper” was ascertainable and identifiable
6. They were not there as a condition, but as an identifier
7. Note that since 2016, this would not have taken effect, but the general point about interpretation remains valid
8. The court will not refer to a status as a condition

Question 7

Ormiston’s Exr v Laws

Answer 7

1. The testator left a legacy to “my fiancée Mrs Sylvia Martis”
2. She was never the deceased’s fiancée
3. Did this operate as a condition?
4. The court held that it didn’t
5. This was purely used as an identifier

Question 8

Brownrigg’s Excr 2021

Answer 8

1. An executor sought direction from the Court about how to distribute a legacy worded to be in favour of a legatee identified as the “Nelson Mandela Educational Fund, South Africa”
2. No such charity existed
3. Could the executor pay to the “Nelson Mandela Children’s Fund, South Africa”?
4. The court held that this was a matter for the executor’s judgment
5. The court refused to rule on the petition

Question 9

Cobban’s Exrs 1915

Answer 9

1. “It is settled, for better or worse, that ademption is a question of fact and not of intention” (per Lord Dundas)
2. It is a matter of fact, not intention
3. If the property is no longer in the estate, it has adeemed

Question 10

Tennant’s Trs 1946

Answer 10

1. The testator had started the process of transferring shares to another
2. The company which the shares were held in had to be notified and the transfer had to be registered
3. The transfer was incomplete at the time of death of the testator as it had not yet been registered
4. The testator was still the owner of the shares
5. The legacy had not adeemed and could take effect

Question 11

Ogilvie-Forbes 1955

Answer 11

1. Land had been transferred by the testator to a company
2. The testator was the sole shareholder in that company, which means that they had full control over the company
3. A company is a separate legal person
4. The pursuer tried to argue that the land was still the testator’s
5. The court held that it had been transferred to another (legal) person, and therefore, the land was no longer part of the testator’s estate
6. The legacy had adeemed

Question 12

Meeres v Dowell’s Exr

Answer 12

1. The doctrine of legatum rei alienae was held not to apply
2. It could not be shown that the testator knew that they were not the owner of the property