Testate succession - essential validity

Question 1

Grounds of challenge [4]

Answer 1

1) Intention to test
2) Capacity to test
3) Voidable wills
4) Unenforceable conditions

Question 2

1 - intention to test

- verbal agreement? [c]

Answer 2

McEleveen v McQuillan’s Exrx

Question 3

1 - intention to test - another case?

Answer 3

• Rhodes v Paterson
sons challenged letter signed ‘mum’. Claimed essentially invalid because no testamentary intention. Held: it was intention, as it said ‘this letter will establish your rightful claim to the house’ and it was also kept secret.

Question 4

1 - intention to test

precatory language [c]

Answer 4

o Jamieson’s Exrs
Had formal will and 2nd letter addressed to solicitor leaving money to various charities. Language ‘I wish/I hope’ – not final intention but an aide-memoire. Also to solicitor – might have been seeking legal advice.

Question 5

1 - intention to test

home-made wills? [2c]

Answer 5

o Ayrshire Hospice, Petrs
v informal-handwritten in ‘will’ envelope - ok
o Draper v Thomason - ‘I haven’t left a will but everything I have is for Billy’ = testamentary intention.

Question 6

2 - capacity to test - effect?

Answer 6

void

Question 7

2 - capacity to test

insanity [2c]

Answer 7

• Nisbet’s Trs v Nisbet - lucid intervals

* Morrison v MacLean’s Trs (eagle guy)

Question 8

Voidable wills - what is voidable? [6]

Answer 8

1 - F&C
2 - UI
3 - error
4 - unenforceable conditions
5 - illegality
6 - immoral purposes

Question 9

Voidable wills

- facility and circumvention - requirements? [3c]

Answer 9

1. Facility - McGilivray v Gilmartin (got mother to sign)
2. Lesion
3. Circumvention - Anderson v Beacon Fellowship
   - Facility and circumvention operate inversely - Wheelans v Wheelans

Question 10

Voidable wills

-undue influence [2c]

Answer 10

• exploitation of trust
• Solicitors - Ross v Gosselin’s Exrs
• Taxi drive - Gaul v Deery

Question 11

Voidable wills

-unenforceable conditions [c]

Answer 11

McCaig cases