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Flashcards in Head 7: Testate Succession Deck (52)
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1
Q

What is testate succession concerned with?

A

This concerns the distribution of an estate in accordance with the rules of testate succession.

2
Q

What is the order of distribution?

A

1) The first thing the executor must do is distribute debts and taxes.
2) The executor must then pay legal rights.[ These have both been considered earlier, so here legacies will be considered in more detail.]
3) The executor must pay legacies.

3
Q

What are the different types of legacy?

A

1) Special / specific legacies
2) General legacies
3) Residuary legacies
4) Universal legacy
5) Legacies may be conditional

4
Q

What are special/specific legacies?

A

⁃ These are legacies in which a specific asset or identifiable set of assets are left by the deceased (e.g. car, house, necklace, brooch, stamp collection, marbles, shares, etc)
⁃ By virtue of a special legacy you may leave an entire thing or you can leave a proportion of a thing (e.g. half of my house).
- It does not need to be of corporeal property, it could be a debt and this is still a special legacy not a pecuniary one.
⁃ Leaving a right to enforce a debt is also a special legacy since it is specific to an identifying asset.[ Be careful with this - this is NOT THE SAME AS LEAVING MONEY TO SOMEONE.]

5
Q

What are general legacies?

A

These legacies leave a certain amount of a certain type of thing to a legatee, rather than leaving a specific identified thing.
⁃ Examples include: 300kg of silver, 1 tonne of apples.

Money is the most conventional general legacy. It is called a pecuniary legacy. It is the only type of general legacy ever encountered in practice. It does not have to depend on the testator having liquid funds.

6
Q

What are residuary legacies?

A

Theses legacies dispose of any remaining estate after all the other claims on the estate have been dealt with (so anything left after debts/taxes, legal rights and other legacies.)

7
Q

What is a universal legacy?

A

A legacy that disposes of the entire estate[ This is obviously subject to legal rights etc.].

8
Q

What does it mean when we say that legacies can be conditional?

A

If a condition is contrary to good morals (contra bonos mores) it is void. Only the condition is void and no the legacy. e.g. In Fraser v Rose a legacy was left on the condition that the legatee did not live with her mother. The condition was held to be pro non scripto (as if not written) so the legatee took the legacy free of the condition.

[Barker v Watson’s Trs 1919 SC 109; Grant’s Trs (1898) 25 R 929; Balfour’s Trs v Johnston 1936 SC 137; Aird’s Trs 1949 SC 154; Innes’s Trs 1963 SC 339; Forbes (1882) 9 R 675; Simpson v Roberts 1931 SC 259; Miller 1977 SLT (Sh Ct) 67.] 


9
Q

What is the interpretation of a legacy based on?

A

Interpretation of a testament is based on the words of the testament itself.[ This is the starting point in every case.] (NB there won’t be implied terms in the same way as you can in contract law.)

The meaning of the words can be interpreted in light of the context and circumstances. When the court is doing this it will take the perspective of the testator (sit in the testator’s chair Hay v Duthie 1956).

10
Q

What happens if a testament is unclear? Can it be rectified?

A

Under the Law Reform (Misc Provs) (Sco) Act 1985 s 8(6), the wording of a testament cannot be altered[ However see Marley v Rawlings [2014] below.] by the court to reflect the true intention of the testator.

11
Q

*Lawson’s Exr v Lawson 1958

A

The following case gives an example of interpretation of a testament by the court:

Estate consisted of (a) house (b) furniture in house (c) cash in house (d) bank accounts (e) investments. Who takes what?
⁃ The terms of the will were[ 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.]. The court was required to interpret what was meant by this testament.
⁃ The ERI claimed that since it was due “all money” it was entitled to the movable estate (not including corporeal moveables) and the heritable estate.
⁃ The brother claimed everything (except cash in the house and bank accounts) on his interpretation of that “all my furniture, belongings etc”.
⁃ The court restated the rule that it must take account of the circumstances. The key words the court had to interrupt were money and belongings.
⁃ The court held that although in some situations “belongings” might include heritable property, in this case it did not since, at the time the testament was written, the testator didn’t own any heritable property.
⁃ In relation to “money”, the court held that pretty much anything which was a bank account and not a corporeal moveable constituted money.
⁃ This meant the house fell into intestacy (since it wasn’t covered by the word belongings or money) - this meant the brother inherited it under the rules of intestate succession. The furniture also went to the brother under ‘belongings’.
⁃ The ERI obtained the cash, the pension, the bank account and investment under ‘money’.

12
Q

Marley v Rawlings [2014]

A

The following Supreme Court case suggests that the rules on interpretation may not be quite as clear as they once were.

⁃ Husband and wife went to a solicitor and had identical (mirror image) wills. Accidentally, they signed the wrong will (husband signed will executed for wife and vice versa).
⁃ 1) In relation to the interpretation of the testament (in English law) the court made a number of very interesting observations (obiter). They seemed to suggest that the traditional approach of looking at the words only, albeit with some context, was quite old-fashioned and that it might be better to think about it in the same way that contract law has moved.
⁃ 2) The rectification question was clear - in England it is possible to rectify a testament and since this was a clear clerical error it was possible to rectify the will. However in Scotland, rectification is not possible[ Due to the Law Reform (Misc Provs) (Sco) Act 1985 s 8(6).].
⁃ Lord Hodge (Scottish judge) mentioned that this isn’t a binding authority in Scotland but made a number of observations about what might have happened in an analogous Scottish case. He stated that it isn’t possible to rectify a testament in Scotland, however it is possible to partially reduce a testament and then pronounce a declarator of its terms. So the end result would be the same, but instead the court would reduce any defective part (e.g. the erroneous execution) and then declare that its terms represent what the testator intended.

13
Q

*Crozier’s Trustee v Underwood 1963

A

Another relevant case concerning interpretation of an ambiguous will.

Make sure to read the will in the comment below:

⁃ The testator was partially illiterate which made interpretation of the will difficult.
⁃ The first question was what was the effect of “all my other affect” mean? The court held that the man probably meant ‘affects’ which suggests he meant ‘goods’.
⁃ The second question was could “all my other affect” refer to “21 South Hermitage” since there was no specific mention of what was to happen to it. The court held yes the house was covered by this phrase. The court held that it was necessary to look at the surrounding circumstances to work out what was meant. Since the will stated that his granddaughter Charlotte was living with him also at the house, the court held that this indicated that he had in mind that he would leave her this house.

Will: “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 herby give and bequeath my Daughter Grace, Wife of Thomas Armstrong, Chollerton staton My House, No. 6 South Liddle Street Newcastleton To my Grand daughter Charlotte, Wife of Robert Crozier Mason residing their Also all my other affect except the clock which I give of my Great Grand daughter Jean Crozier, I alo give to Jams Arthur Crozier my watch and the Bible which I got form my son John in America, and 2 Volums of Christopher Sturm, and all my School copies, also to my Great Grand Daughter Frances Mary Crozier the Life of Christ. All other affects go to Charlotte both in sidside the hous and out side that belongs to me, and all money that I my have at my death. I hereby appoint my Daughter Grace and my granddaughter XX as my Sole excutors to cllect all money that my become due to me and pay all expences. Arthur Underwood.”

14
Q

What are the difficulties which arise when identifying the legatees?

A

One of the difficulties which can arise is the identification of legatees:

Erskine stated that a legacy is valid even if there is an error in the name of the legatee … provided his description identifies him sufficiently from all others.

The difficulties can be due to:

1) Ambiguous name
2) Unambiguous charity name
3) Where the legacy is designed by a relationship
4) Class legacies

15
Q

Cathcart’s Trs v Bruce 1923

A

[Ambiguous Name] ⁃ A legacy of the residue was left in favour of “the sons of General Alexander Fairlie Bruce”. The problem was that there was no such person. There was a General Alexander James Bruce and a Mr Alexander Fairlie Bruce. The court considered supporting evidence to work out the testator’s intent. There was a letter uncovered from the deceased’s wife which referred to the sons as ‘young men’.
⁃ The General had sons aged between 12 and 24 when it was written. The Mr had sons aged between 34 and 50. The court held that the testator meant General Alexander James Bruce and had simply made an error in relation to his middle name.
- Erskine III 9, 8: “A legacy is valid though there should be an error in the name of the legatee…provided his description distinguishes him sufficiently from all others”.

16
Q

Nasmyth’s Trs v NSPCC 1914

A

[Unambiguous charity name]
⁃ Scottish testator left a legacy to the “The National Society for the Prevention of Cruelty to Children”. As it happened this charity only carried out work in England. There was an equivalent charity which operated in Scotland called the “The Scottish National Society for the Prevention of Cruelty to Children”. Question was, what had the testator meant?
⁃ All the other bequests in the will had been to Scottish charities. But since he had written down the name of the English charity, the words were so clear that the court would require very substantial evidence to prove that he intended the Scottish charity. There was no evidence on this at all and thus the court held that the money had to go to the English charity.

17
Q

*Couper’s JF v Valentine 1976

A

Is designation by relationship a condition? - NO

⁃ Testator bequeathed his estate to ‘my wife, Mrs Dorothy Couper’. Before the deceased died he divorced Mrs Dorothy Couper. The question was whether the words ‘my wife’ imposed a condition on the legacy (that she would have to remain his wife)?
⁃ The court held that these words were not conditional, they clearly identified the legatee.

18
Q

Ormiston’s Exr v Laws 1966

A

Testator left legacy to ‘my fiancée Mrs Sylvia Martis’. Sylvia Martis was not his fiancée. Was Mrs Sylvia Martis entitled to the legacy?
⁃ Yes, she was entitled since the legatee was clearly identified. The words ‘my fiancée’ were not conditional.

19
Q

Burn’s Trs 1961

A

Legacy left to a nephew and ‘his wife’. The nephew divorced and then remarried after the execution of the will. Question was whether the fact the nephew now had a new wife mean that she could inherit under the deceased’s testament.
⁃ Yes - the reason was that the testator had intended to benefit the testator’s family rather than a particular individual. So in this case ‘wife’ refers to a person who is occupying this position at the relevant time.

20
Q

What is a class legacy?

A
A class legacy is left to a class of individuals rather than a specific individual. E.g. "the children of Andrew Smith".
⁃	Example: Jane gives legacy to "Tom's children." Tom has four children. One dies a year before Jane's death. One born a year after her death. Who takes legacy?
⁃	The three surviving children at the time of the deceased's death take the legacy. The one who died has predeceased so is not entitled to inherit. The post-born does not inherit either. A class is normally to be ascertained at the date of the testator’s death.
21
Q

*Wood v Wood

A

??

22
Q

What happens when there is a bequest to charity, if charity does not exist, or has ceased to exist?

A

??

23
Q

What is abatement?

A

Sometimes what the testator wishes to happen is not possible (their estate may contain insufficient funds). The rules of abatement concern who is to inherit in such instances.

Estate inadequate for legacies because

(a) gross estate too small or
(b) gross estate big enough but net estate not big enough because of debts, taxes or legal rights. Pecuniary legacies abate before special legacies.

24
Q

What are the rules of abatement?

A

⁃ 1) The residue abates first.
⁃ 2) General legacies[ Remember these include legacies of money.] abate before special legacies
⁃ 3) Legatees of the same class of legacy suffer pro rata abatement (if two people have the same type of legacy they suffer equal / proportional abatement).

25
Q

Vera leaves £100,000 to Wilma, house to Xerxes, residue to Yvonne. Estate: house worth £200,000 plus £120,000 moveables. Debts: £60,000.

A

??

26
Q

Fiona leaves £100,000 to Gregory, £200,000 to Heather and the rest to Ian. Her estate is worth £200,000. There are £160,000 of debts, all unsecured. No relict or issue.

A

The estate is thus worth £100,000 minus £160.000 = £240,000. Ian would take nothing, and the £240,000 has to be divided between G and H. G would take £80,000 and Heather would take £160,000 (The house and £100,000 painting would have to be sold by the executor). The two legacies have abated equally. Gregory’s legacy was half of H’sand so what he receives is also half.
If the legacy to G had not been a pecuniary legacy but a special legacy of the painting. He would have received the painting and H would have received £140,000. Ian would have received nothing. The reason is that pecuniary legacies abate before special ones.

27
Q

As first case, but debts are £140,000.

A

??

28
Q

As in first case, but keep debts at £60,000 and increase moveable 
estate to £400,000.

A

??

29
Q

Sonja’s testament leaves house to Tom, £100,000 to Ursula and 
residue to Vikki. Her estate is house £200,000 plus £150,000 moveables. No debts. Sonja is single and has one child, Woody.

A

??Woody claims legal rights. ???

30
Q

What is ademption?

A

This doctrine concerns the situation where the testator has left a special legacy of a particular piece of property which is no longer in their estate at the time of death. In this situation it is said that the legacy has been “adeemed” and is therefore void.

“It is settled, for better or worse, that ademption is a question of fact and not of intention.” Cobban’s Exrs 1915 SC 82 per Lord Dundas.

31
Q

What is an anti-ademption clause?

A

It is possible that a legacy can be worded in such a way as to avoid the operation of ademption.
⁃ E.g. “I bequeath to John Smith my house at 84 Barr Road, Oban, or such other house which I may own at my death as my principal residence.”

32
Q

What is the test for ademption?

A

The test for ademption is simply whether the asset is still in the testator’s patrimony or not. If it is not, the legacy is deemed…?

33
Q

Ballantyne’s Trs 1941 SC 35

A

??

34
Q

Cobban’s Exrs 1915

A

Ademption is a question of fact and not of intention. (The reason for this remark is that in the past it has been argued that should the piece of property been disposed of, it might have been arguable that the testator intended that whatever replaced it in the estate should form the basis of the legacy - but the courts have rejected this.)

35
Q

Ogilvie-Forbes’ Trs 1955

A

Land transferred by a testator to a company that he was the sole shareholder of. His testament referred to this land and left it in a special legacy to someone else. When he wrote the testament the land was owned by him.
⁃ The question was whether the land had been adeemed? The court held that since ademption is a simple question of fact, since the testator’s estate no longer owned the land, he could not bequeath it. Thus the legacy was adeemed.

36
Q

Tennant Trs 1946

A

The testator had started the process of transferring shares that he held but he had not completed the transfer when he died. The shares were therefore still a part of his estate/patrimony and thus ademption could not operate.

37
Q

Gordon’s Exr v Turner 2012

A

The heritable property of the deceased had been sold by an attorney under a power of attorney. The heritable property was the subject of a special legacy. The attorney’s decision to sell this property was based on the ‘prudent management of the deceased’s affairs’ and therefore the decision to sell had not been one of ‘necessity’. In Scots law, a specific legacy is not considered to be adeemed unless it would be considered a necessary and unavoidable act to have sold the property. Thus in this case the legacy was not adeemed.
⁃ (If however, the attorney had had to sell the property then the legacy would have been adeemed.)

38
Q

What is Legatum rei alienae?

A

This means ‘legacy of someone else’s property’. e.g. Where a testator possesses something and mistakenly believes it to be his/hers. This must belong to someone else at the time of the testament, as well as at the time of death. If a deceased purports to bequeath something by legacy that is not owned by them the doctrine of legatum rei alienae is triggered.

39
Q

What must be court consider in cases of legatum rei alien?

A

In such instances the court must consider the mind of the deceased.

The general rule:
⁃ If the deceased knew that he was not the owner then it is taken to be an instruction to the executor to try to obtain the item. If it is impossible to obtain the item then the legacy is the value of the item, if valuation is possible.
⁃ If the deceased did not know that he was not the owner then the legacy is void.

40
Q

Meeres v Dowell’s Exr 1923

A

Deceased purported to leave furniture by way of a legacy. Turned out that he had already transferred the furniture to someone else. The court held that he did not know that he wasn’t the owner. (Thus presumably the legacy failed)?

41
Q

What happens if a legatee dies?

A

The dead can not inherit. Nor does the legacy pass to his or her estate.

So, if the testament leaves a legacy in favour of someone who has died before the testator, then the legacy lapses and it is void [NB if a trust lapses it is NOT void].

42
Q

What is ‘express destinations over’?

A

This is an instrument which attempts to get around the problem of a predeceasing legatee. These can be divided into basic and survivorship destinations-over.

43
Q

What is a basic destinations-over?

A

E.g. “To Alice whom failing to Boris”.
⁃ Here the testator’s plan is that Alice gets the legacy, unless she has died in which case Boris gets the legacy. If both are alice then Alice takes the legacy alone.

44
Q

What is a survivorship destinations-over?

A

E.g. “To Alice and Boris equally between them and to the survivor”.
⁃ If both are still alive then they will both receive an equal share. If either one is dead then the other will receive the property.

45
Q

What are ‘implied destinations-over’?

A

There are two situations in which implied destinations-over apply.

1) Accretion
2) Conditio si institutes sine liberis decesserit [Somewhat similar to representation.]

46
Q

How does implied destinations-over apply in cases of accretion?

A

⁃ If a legacy is worded in such a way as to leave “£10,000 to Ann and Brian” the law is that the share of one predeceasing will accresce to the other. So the law implied a destination over so if Ann predeceases Brian, Brian will receive £10,000.
⁃ NB this is only implied and thus is subject to express words to the contrary (known as words of severance). So if the testator stated “£10,000 to Ann and Brian equally between them” if one predeceases the other, the survivor will still only receive £5000.
- NB this is only a presumption so it is rebuttable by evidence of contrary intention.
- The simplest way to avoid accretion is to make the legacies separate, e.g. £10,000 to Anne and £10,000 to Brian’.
- Or ‘words of severance’ can be used e.g. ‘Equally between them’ excludes accretion [Paxton’s Trs v Cowie (1886)].

47
Q

How does implied destinations-over apply in cases of Conditio si institutes sine liberis decesserit?

A

⁃ The law implies that if a testator provides a legacy for one of his/her children, then there is an implied destination-over in favour of their children (i.e. the testator’s grandchildren)
⁃ It is not entirely clear whether the conditio can apply to other family members.

48
Q

What are the conflicts that can arise between destinations-over?

A

Normally an express destination-over will take precedence over an implied destination-over.

There is an exception however, in relation to the conditio. The conditio can trump an express destination-over. It can also prevail over accretion. [This was decided in Devlin’s Trs v Breen 1945]

49
Q

Devlin’s Trs v Breen 1945

A

There was a residuary legacy left to “my two children Elizabeth and Thomas or the survivor.” Had both been alive at the time of the death of the testator then the residue would have been split 50/50. According to the express destination-over, if one of them had predeceased, the other would take everything. However, if the conditio operated it would have to be split 50/50 (since it is as if both were still alive at the time).
⁃ The court held that the conditio prevailed and thus the division had to be split 50/50.

⁃ The conditio will also trump accretion.

50
Q

What is vesting?

A

The basic rule is that most of the rights and entitlements that will flow from the death of someone will vest in beneficiaries at the moment of the deceased’s death. So a succession right ‘vests’ when the beneficiary acquires a right to it. The exception to this are conditional legacies.
⁃ If there is a condition then the vesting of rights may be postponed.

51
Q

When do rights vest?

A

Right “vests” when beneficiary acquires personal right. Normally immediately on death of de cujus. Jane dies on 1 May. Her will leaves legacy to Keith. Keith can sell or bequeath this personal right, and his creditors can attach it. Same true of legitim right, and rights on intestacy.

So (i) Legal rights, (ii) prior rights, (iii) s 2 intestate succession rights and (iv) unconditional legacies vest immediately on death of de cujus. Conditional legacies, and some interests in trusts, can be unvested.

52
Q

What are some examples of vesting?

A

⁃ Alan’s testament directs executor to hold for Bob in liferent and Cindie in fee. Alan dies 1 March, Bob dies 1 April, Cindie dies 1 May. Rights of B and C vest on A’s death.[ This is just a typical, simple example.]
⁃ Alan’s testament directs executor to hold for Bob in liferent and Cindie in fee. Alan dies 1 March, Bob dies 1 May, Cindie dies 1 April. Rights of B and C vest on A’s death. So C’s right passed to her estate on 1 April. [ This just illustrates that an estate can follow up a claim of someone who was alive for the purposes of vesting.]
⁃ Donna’s testament gives legacy of house to Euan but only if he survives her by 30 clear days. (= Suspensive condition.) Euan dies on day 29. His right is unvested on his death and so does not pass to his estate.[ The conditional legacy has prevented the vesting.]