Succession

Re H (Deceased)

A husband killed his wife while psychotic. He did not have the mens rea for murder and was subsequently convicted of culpable homicide. Held that the killer was not responsible for his actions and the forfeiture rule was not applied.

Hunter's Exrs, Petrs

A husband murdered his wife. The wife had previously made a will bequeathing her whole estate to that husband if he survived her. If not, then the estate would go to the sister and stepson equally. Should the husband be treated as having predeceased his wife? Should the estate fall into intestacy? Public policy required that the forfeiture rule be applied only as far as necessary. Public policy did not required the use of the fiction that the husband predeceased. The killer was simply disqualified because of the unlawful killed. The estate subsequently lapsed into intestacy with the victim's sister receiving everything.

Jamieson's Exrs

A letter to a solicitor is from its nature provisional: it looks forward to a formal deed. "I would like this to happen". "I like" and "I hope" do not show sufficient intention. It related, instead, to future intention. It was an aide memoir, not a valid will. She was only seeking legal advice.

Anderson v Beacon Fellowship

A sought the return of donations amounting to GBP 23,100 from B, a religious association, averring that while suffering from manic depressive illness, and while B owed him money for the purchase of a hall, he had been induced by repeated pressure by B's representatives to renounce worldly possessions and had become obsessed with their religious beliefs as a means of salvation, and that he had handed over the money while in a weak and facile condition. Held = Financial and religious pressure is enough to amount to circumvention.

Kerr, Petr

A widow was the universal legatee of her husband. A daughter from a previous marriage had also survived him and her entitlement to legitim would have reduced the estate available for payment of the legacy to the widow. To prevent any moveable estate being available to satisfy the daughter's claim, the widow renounced her legacy of the whole of her husband's estate and the question for the court was whether intestacy was the invariable outcome of the renouncing of a universal settlement. The court answered in the affirmative, with the result being that the widow could claim prior rights and exhaust the entire (now intestate) estate - thus, excluding her stepdaughter's claim to legitim. Recognition of artificial intestacy.

Graham v Graham

Apportion debt in the same proportion as the assets, not the securities. Where a debt is secured over two assets - both will be burdened in the ratio of their values.

Coats Trs v Coats

Archibald C died, leaving behind two sons and three daughters. All of the children had received collatable advances from their father during his lifetime. All of the children had also been provided for in his will. One daughter, Evelyn, elected to take legitim rather than her inheritable under the will. The question was whether Evelyn and/or her siblings required to collate in this situation. The court noted that the doctrine of collation was an equitable doctrine designed to preserve equality among siblings when the legitim fund was divided. In this case, since only child was concerned with the distribution of the legitim fund, there was no place for collation to operate. All the advances were accordingly ignored in calculation of the legitim claim. ___________________________________________________ No discharge of legal rights *prior* to death.

Honeyman's Exrs v Sharp

Boudin paintings. Undue influence test. 1. Where a professional undertakes the giving of advice to another and, as a result, a relationship of trust and confidence develops, then there is a moral duty upon the advisor not to take advantage of the advisee. It gave legal effect to this moral duty by applying the principle of undue influence. 2. That undue influence involved some kind of abuse of the position of trust for the benefit of the person in whom the trust was confided.

Greenan v Courtney

Conditio si testator sine liberis decesserit Clarified that parole evidence of the testator's intention to exclude the child (in other words, evidence from other people of what the testator said, as opposed to something written by the testator himself) will not be sufficient to overturn the persumption

Ross v Gosselin's Trs

For undue influence, a relationship of trust could be that between a solicitor and client. The essence of undue influence is that a person, who has assumed or undertaken a position of quasi-fiduciary responsibility in relation to the affairs of another, allows his own self-interest to deflect the advice or guidance he gives, in his own favor. On the other hand, the essence of circumvention and facility is that a person practises on the debility of another whose individuality is impaired by infirmity or age, and moulds the inclination of the latter to his own profit.

Rhodes v Peterson

General principle of intention Challenged the letter given to the daughter on the basis that it was not formally valid. However, it was clear to identify the testator based on signature. Testamentary intention challenge Was it merely a statue of future intent? Held that there was a valid will. This letter will establish her valid claim and coupled with the secrecy of trying to hide it from her sons, indicated a clear intention to give the property to her daughter.

Savage v Purches

Graham Voysey died leaving no will. S was his cohabiting partner and made a claim on his estate under s.29 of the 2006 Act. The defender was the deceased's half-sister, who stood to inherit the whole estate under the law of intestacy. The court was satisfied that the pursuer and the deceased had "lived together" within the meaning of the Act, but did not make an award to the pursuer. S had already received a sizeable inheritance, relative to the size of the estate, as the proceeds of a life insurance policy in respect of the deceased. Additionally, S and V did not have a shared bank account and V had not made a will naming S as a beneficiary, all of which suggested to the court that the deceased would have intended Ms. P to inherit.

Pascoe-Watson v Brock's Exr

Is alcohol dependency enough to show facility? Was she discouraged from seeing friends? Not necessary to show actual manipulation. She took advantage of a situation to manipulate in her favour. Facility was proven because of old age and alcohol dependency

Morton's Trs v Aged Christian Friends Society

It is a general rule that a personal obligation transmits against the personal representatives of the obliger.

Ballantyne's Trs v Ballantyne's Trs

It was held that a legacy of money in a particular bank account adeemed where the money had been transferred into a different bank account.

Hog v Hog

Legal rights can be discharged (renounced) by the claimant. If the discharge is effected prior to the death of the deceased, the estate including any other legal rights claims will be distributed as though the discharging claimant had never existed. Will enlarge the pot

Dawson's Trs v Dawson

Mrs. D elected to take her inheritance under her late husband's will rather than her entitlement to jus relictae, based on legal advice she had received as to the value of the two different claims. It subsequently became clear that the legal advice had been wrong. The widow wished to revoke her election. The court found that, since there had been an error, and since nothing had happened as a result of her election which could not be undone without too much difficulty, she was free to revoke her election and take her legal rights entitlement instead. *The beneficiary must make a property informed decision*.

Harvie's Exrs v Harvie's Trs

Mrs. H had to choose between provision under her husband's will and her legal rights entitlement. After advice from a lawyer, she continued to live on her husband's farm, which was considered to be a provisional election in favour of the will, since she would have had no right to the farm in jus relictae. While she awaited a statement from the accountant on which to base her final election, she died. The court was satisfied that her actions were enough to amount to an election. It also indicated that, since the election was not injurious to her pecuniary interests, the election was binding despite the fact that she had not received full legal advice.

MacGilvary v Gilmartin

Pursuer averred that the defender, her daughter, had been living with her, at her home on the Isle of Luing, at the time of her bereavement. Shortly after, the defender pursued the pursuer to go with her to Ayr. Before making that trip, she was persuaded by her daughter to go to a solicitor's office and sign papers. It was averred that that piece of paper was a disposition. The Court accepted facility because of her bereavement and because she did not understand what she was signing. Actual deceit is not necessary Personal benefit gained through a relationship of trust Need some kind of abuse of a relationship of trust, in whom trust is confided.

Gaul v Deerey

Relevant relationship can also extend to an elderly woman and her taxi driver. Successful on grounds of facility and circumvention The Court also held that it could have been an undue influence case. A woman came under the influence of a taxi driver who was the only person to provide her company.

Couper's JF v Valentine

Roy C made a will in which his entire estate was left to "my wife, Mrs. Dorothy C". He later divorced his wife for desertion. Several months after the divorce was granted, he died without having made any change to his will. Was Dorothy C entitled to inherit the estate now that she was no longer his wife? The court did not consider the words of the will to imply that it was a condition of the inheritance that the beneficiary remain the testator's wife. The language was simply descriptive. Accordingly, the divorce had no effect on the legacy and the beneficiary was entitled to inherit the estate.

Ayrshire Hospice, Petr

Should look at the whole document to determine intention. More sympathetic to hand-written documents that indicate clear intention. Here, intention was determined through a list of legacies.

Walker v Orr's Trs

The children of the deceased elected for legitim instead of a legacy. They were neither shown a copy of the will, told the value of the estate nor encouraged to obtain independent legal advice. Thirteen years after electing, they revoked the election and claimed their legacies instead. Since the children had been minors at the time of making the election, the court upheld the revocation because they lacked capacity. An election made by a child under 16 is, accordingly, void.

MacFarlane's Trs v MacFarlane

The deceased had owned shares in a company and made a will leaving those shares to his mother and sisters. A few months before his death, the deceased became incapable of managing his own affairs and a curator bonis was appointed to look after them. The curator sold the shares. Did the legacy therefore adeem? The court considered that action taken by a curator could not impact on the deceased's testamentary provision unless it was a necessary and unavoidable act on the curator's part. The shares had been sold in this case simply because the curator considered it prudent to do so. Accordingly, the legacy did not adeem, and the beneficiaries were entitled to receive the value of the shares from the estate.

Morrison v MacLean's Trs

The deceased left part of his estate for the benefit of his housekeeper, and the rest in trust for the education of boys named MacLean. No provision was made for any surviving family members. The court did not consider this in itself evidence of lack of capacity on the testator's part. Content of the deed could not prove lack of capacity. Even though there were odd provisions, this was no grounds for lack of capacity.

Keiller v Thomson's Trs

The legacy was left to 'Janet Keiller or Williamson'. Was the legacy intended for Agnes Keiller/Wedderspoon or or Janet Keiller/Whitton? Evidence of earlier testamentary writings was admitted, in which Agnes Wedderspoon had frequently been the object of a similar legacy. The court concluded that Williamson was an erroneous transcription of Wedderspoon here. Evidence was led that the testator intended to benefit a certain person

Lamb v Lord Advocate

The standard of proof about the order of deaths was held to be the ordinary test of the *balance of probabilities*

Petrie's Trs v Mander's Trs

The testator had bequeathed a legacy of the residue of his estate to his widow in liferent and his children in fee. The deed contained a provision that the legacies were in full satisfaction of legal rights. The widow elected to claim the legacy and she executed a formal acceptance of it, reserving her right and the right of her executors to ius relictae if any of the estate fell into intestacy. The testator's children had already predeceased him and the fee had fallen into intestacy at the date of the deed. The court held that the reservation of the right in intestacy was effective and that the claim for ius relictae from the intestate estate passed to the widow's executors.

Ogilvie-Forbes' Trs v Ogilvie-Forbes

The testator had made a bequest of a liferent interest in his heritable estate. He then formed a private company in which he retained a controlling interest and sold his interest in the heritage to it. The question for the court was whether the heritage was substantially the same thing or not. It held that although the heritage remained in exactly the same form when it was sold, the testator had exchanged the heritage for the shares in the company. Because shares in a company are not identical with the assets of the company, the thing bequeathed had been exchanged for something different. The question is whether a testator has at the time of his death the same thing existing, it may be in a different shape, yet substantially the same thing.

Cathcart's Trs v Bruce

Where it would otherwise be impossible to identify the intended beneficiary, extrinsic evidence may be admitted. For example, where two people amongst a number of possible beneficiaries bore similar names but neither name corresponded exactly to the beneficiary nominated in the deed, letters from the deceased were admitted to show who was the most likely candidate.

Windram v Windram

William Giopazzi died leaving no will. W was his cohabiting partner and made a claim on his estate under s.29 of the 2006 Act. The action was defended by a curator ad litem representing the interests of the couple's children, who stood to inherit the whole estate under the law of intestacy. The court was satisfied that the couple had "lived together" within the meaning of the Act for around 25 years. They had raised two children and run a business together, although all assets were in the deceased's name. The court accepted that Ms. W was essentially in the same position as a spouse, and made an award close to what a surviving spouse would have received on intestacy, with a small deduction to take account of an additional sum Ms. W had received under an insurance policy. The court hoped that this approach would balance the rights of Ms. W with those of the children.