Testate Succession Flashcards
What is a testament? When can it be made?
A will written by a testator.
Age of Legal Capacity (S) Act 1991
s2(2) - age 12
Adults with Incapacity (S) Act 2000
- loss of general capacity = loss of testamentary capacity
Solicitors (S) Act 1980 s32(3)(a)
- offence to write a will on behalf of another person, unless no payment recieved
G Applicant.
T, Applicant.
G - court can exercise testamentary power on behalf of incapax, to avoid main beneficiary from being disinherited here
T - court allowed codicil as it was clear the incapax had intended son to recieve largest sum of heritage
What is the aim of succession?
Discern how the deceased would have wanted their estate to be distributed.
H, Applicant
Applicants plea to change will rejected.
Court will not rewrite clear intention of testator.
Seemed they wanted applicant to live in house, rather than recieve proceeds of a sale.
Guardian of P
Applicant argued that leaving estate to incapax was an irrelevant use.
Court rejected amendment plea because Ps intentions were clear in leaving estate to sister.
Valid execution of a testament.
ROWA 1995: s1(2)(c) - writing s2(1) - subscribed - sign of intent s7(1) - subscribed at end s7(2) - requirements of signature - usual method of person
When is a testament probative?
Probativity - assumption of validity.
s3(1)(a) - granter subscription
s3(1)(b) - witness subscription
s3(2) - granter signed each sheet
Draper v Thomason.
Letter signed ‘Connie’ was valid but not probative, must show testamentary intent.
Rhodes v Peterson.
Letter ‘Lots of love Mum” was valid but not probative.
McLay v Farrell
“At the end of last page” - anything below subscription does not count, anything above is given effect to.
Davidson v Convy.
Unsigned document inside an unsealed envelope. Court deemed the contents of the envelope could adopt the envelope subscription.
What is a codicil?
Document altering existing testamentary document. Same execution formalities as a will.
Burns Trs v McKenna.
If both will and codicil are valid, later one takes precedent.
What is notorial execution?
ROWA 1995
s9(1)
Where physically unable to sign testament, notary/solicitor/advocate can sign on behalf of testator.
Concept of ‘proving the tenor’.
Lauder v Briggs
If you can prove what was in a will even if it is physically lost.
Jamieson’s Exrs.
Letter instructing solicitor to write up will was did not constitute testamentary intention. Lack of signature
Hamilton Ptnr
Informal example of will. Held all key concepts of valid intent, including a signature.
Effect of revocation.
S(S)A 2016, s5
- revocation will not revive earlier revoked will
Revocation destroys will.
Can be done at any time - Paterson v Paterson
Elders Trs v Elder.
Implied revocation due to inconsistencies. Executor will let them coexist to the extent this is possible but otherwise latter prevails.
Children born after testament was written can challenge under conditio
Duthie’s Trs v Taylor.
No revocation so the court held that both wills should be given effect to.
Any inconsistencies to be solved by later will - housekeeper could take legacy without condition.
Conditio si testator sine liberis decesserit.
Implied destination over.
Testator provides a legacy for A, there is an implied destination over to A’s children (equivalent of representation). Subsequently born children can challenge will seeking to have it revoked.
Stuart Gordon v Stuart Gordon.
Conditio si testator sine liberis decesserit did not kick in due to evidence of her considering will and not changing it to include newborn.
Milligan’s JF v Milligan.
Passage of time (10 yrs) was not held by court to be sufficient in itself to challenge presumption.
Greenan v Courtney.
Deceasd’s will written before children of 2nd marriage born. Court rejected first wife’s evidence aiming to rebut conditio presumption.
Can a will be reduced?
Yes - becomes either void or voidable.
Facility and circumvention, forgery, fraud, force and fear etc.
What is an offside goal?
Challenge to a legacy where deceased agreed to leave property to a party different from that stipulated in the will.
Wheeldon’s Excr v Spence’s Excr.
Can a will be rectified?
S(S)A 2016
s3 - certain circumstances - not drafted by testator, inaccurately represents instructions of testator
s4 - application for rectification must be within 6 months of death/confirmation
Marley v Rawlings.
Held that it was impossible, in Scots law, to rectify a will. Superseded by S(S)A 2016 s3.
White v Jones and its application in Scotland.
A solicitor owes a duty of care to beneficiaries.
Holmes v Bank of Scotland
- White applies in Scotland
Steven v Hewats
- applies to inter vivos gifts
- solicitor liable for loss incurred by donee on botched conveyance
In what order is the estate distributed?
- debts and taxes
- legal rights
- legacies
Hierarchy of legacies.
- special legacies > specific identifiable asset
- general legacies > amount or type
- residuary legacies > remaining estate
- universal legacies > entire estate
Hay v Duthie.
- court sits in testators chair
- interpretation based on words of testament itself
- decipher what deceased wanted when will was written
Lawson’s Exec v Lawson
- court held that the house was not included in belongings
- house was not owned at time will was written
What is a class legacy?
Legacy left to class of individuals not an identified specific individual.
Nasmyths Trs v NSPCC
As will was unambiguous regarding charities, extrinsic evidence could not be used to show other intent.
How is the estate divided in a situation of abatement?
Abatement: insufficient estate Legal rights first. Remaining estate provided for as far as possible in this order: 1. special legacies 2. general legacies 3. residuary legacy, abates first
Debts exceed assets?
- special legacy sold to meet debts
- rights transfer to net proceeds of sale
What is ademption?
Where a special legacy is no longer part of the estate, it is adeemed.
Ogilvie-Forbes Trs’
Transferring land to company does constitute ademption as the company is a separate legal person and owns the land.
Tennant.
As shares had not been registered, they remained in estate. No ademption.
Legatum rei alienae.
Where the deceased knew he did not own subject of legacy, executor obligied to procure that piece of property.
Meeres v Dowell’s Exr
Effect of death of legatee.
If legatee predeceases testator, legacy has lapsed.
