Testate Succession

Question 1

What is a testament? When can it be made?

Answer 1

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

Question 2

G Applicant.

T, Applicant.

Answer 2

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

Question 3

What is the aim of succession?

Answer 3

Discern how the deceased would have wanted their estate to be distributed.

Question 4

H, Applicant

Answer 4

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.

Question 5

Guardian of P

Answer 5

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.

Question 6

Valid execution of a testament.

Answer 6

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

Question 7

When is a testament probative?

Answer 7

Probativity - assumption of validity.
s3(1)(a) - granter subscription
s3(1)(b) - witness subscription
s3(2) - granter signed each sheet

Question 8

Draper v Thomason.

Answer 8

Letter signed ‘Connie’ was valid but not probative, must show testamentary intent.

Question 9

Rhodes v Peterson.

Answer 9

Letter ‘Lots of love Mum” was valid but not probative.

Question 10

McLay v Farrell

Answer 10

“At the end of last page” - anything below subscription does not count, anything above is given effect to.

Question 11

Davidson v Convy.

Answer 11

Unsigned document inside an unsealed envelope. Court deemed the contents of the envelope could adopt the envelope subscription.

Question 12

What is a codicil?

Answer 12

Document altering existing testamentary document. Same execution formalities as a will.

Question 13

Burns Trs v McKenna.

Answer 13

If both will and codicil are valid, later one takes precedent.

Question 14

What is notorial execution?

Answer 14

ROWA 1995
s9(1)
Where physically unable to sign testament, notary/solicitor/advocate can sign on behalf of testator.

Question 15

Concept of ‘proving the tenor’.

Answer 15

Lauder v Briggs

If you can prove what was in a will even if it is physically lost.

Question 16

Jamieson’s Exrs.

Answer 16

Letter instructing solicitor to write up will was did not constitute testamentary intention. Lack of signature

Question 17

Hamilton Ptnr

Answer 17

Informal example of will. Held all key concepts of valid intent, including a signature.

Question 18

Effect of revocation.

Answer 18

S(S)A 2016, s5
- revocation will not revive earlier revoked will

Revocation destroys will.
Can be done at any time - Paterson v Paterson

Question 19

Elders Trs v Elder.

Answer 19

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

Question 20

Duthie’s Trs v Taylor.

Answer 20

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.

Question 21

Conditio si testator sine liberis decesserit.

Answer 21

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.

Question 22

Stuart Gordon v Stuart Gordon.

Answer 22

Conditio si testator sine liberis decesserit did not kick in due to evidence of her considering will and not changing it to include newborn.

Question 23

Milligan’s JF v Milligan.

Answer 23

Passage of time (10 yrs) was not held by court to be sufficient in itself to challenge presumption.

Question 24

Greenan v Courtney.

Answer 24

Deceasd’s will written before children of 2nd marriage born. Court rejected first wife’s evidence aiming to rebut conditio presumption.

Question 25

Can a will be reduced?

Answer 25

Yes - becomes either void or voidable.

Facility and circumvention, forgery, fraud, force and fear etc.

Question 26

What is an offside goal?

Answer 26

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.

Question 27

Can a will be rectified?

Answer 27

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

Question 28

Marley v Rawlings.

Answer 28

Held that it was impossible, in Scots law, to rectify a will. Superseded by S(S)A 2016 s3.

Question 29

White v Jones and its application in Scotland.

Answer 29

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

Question 30

In what order is the estate distributed?

Answer 30

1. debts and taxes
2. legal rights
3. legacies

Question 31

Hierarchy of legacies.

Answer 31

1. special legacies > specific identifiable asset
2. general legacies > amount or type
3. residuary legacies > remaining estate
4. universal legacies > entire estate

Question 32

Hay v Duthie.

Answer 32

• court sits in testators chair
• interpretation based on words of testament itself
• decipher what deceased wanted when will was written

Question 33

Lawson’s Exec v Lawson

Answer 33

• court held that the house was not included in belongings

- house was not owned at time will was written

Question 34

What is a class legacy?

Answer 34

Legacy left to class of individuals not an identified specific individual.

Question 35

Nasmyths Trs v NSPCC

Answer 35

As will was unambiguous regarding charities, extrinsic evidence could not be used to show other intent.

Question 36

How is the estate divided in a situation of abatement?

Answer 36

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

Question 37

Debts exceed assets?

Answer 37

• special legacy sold to meet debts

- rights transfer to net proceeds of sale

Question 38

What is ademption?

Answer 38

Where a special legacy is no longer part of the estate, it is adeemed.

Question 39

Ogilvie-Forbes Trs’

Answer 39

Transferring land to company does constitute ademption as the company is a separate legal person and owns the land.

Question 40

Tennant.

Answer 40

As shares had not been registered, they remained in estate. No ademption.

Question 41

Legatum rei alienae.

Answer 41

Where the deceased knew he did not own subject of legacy, executor obligied to procure that piece of property.
Meeres v Dowell’s Exr

Question 42

Effect of death of legatee.

Answer 42

If legatee predeceases testator, legacy has lapsed.