LIFERENT

 Proper liferent: gives liferenter subordinate real right in property and fiar is owner of property and
holds fee (right of ownership burdened by liferent)
 Improper liferent: trust; where property is owned by trustee (‘fiar’) and ‘liferenter’ is beneficiary
with personal right against trustee under that trust
 Creation (1964 Act ss10(1) and 33(1))
o Must be in writing [i.e. deed] as it is over land (Requirements of Writing (Scotland) Act
1995 s1(2)(b))
o Deed creating proper liferent must be registered/recorded (Land Registration etc
(Scotland) Act 2012 s51(2))
o Can only be in favour of natural person
o Usually over heritable property but can be over moveable property though this is rare in
practice because moveable property is not as durable
o By grant which can be created in inter vivos deed (deed executed while still alive) or mortis
causa deed (deed that takes effect on death) or reservation (i.e. reserving liferent to
themselves as part of transfer of ownership of property) which can only be created in inter
vivos deed because there can be no reservation to deceased

PROBATIVITY OF WILLS

 Requirements of Writing (Scotland) Act 1995

o s3(1)(a): bears to be subscribed by granter
o s3(1)(b): signed by witness
o s3(2): if more than one sheet it must be signed by granter on each sheet
 If will isn’t probative, s4 procedure for affidavit must be taken

VALIDITY OF WILLS

 Requirements of Writing (Scotland) Act 1995

o s1(2)(c): must be in writing
o s2(1): must be subscribed
o s7(1): ‘subscribed’ = signed at end of last page
o s7(2): ‘signed’ = 1) full name, 2) surname plus forename/initials, or 3) other name,
description, initial or mark AND usual method of signing; or intended it as signature
 Draper v Thomason: court gave effect to letter in which testator wrote “everything I have is for
Billy” signed “Connie” as court held “Connie” was her normal way of signing documents and was
therefore valid signature
 Rhodes v Peterson: court held that letter in which testator signed “Mum” was valid signature as
this was normal way for testator to sign off letters to that particular person
 McLay v Farrell: court held that legacy written after signature was invalid though rest of testament
and its provisions were valid
 Davidson v Convy: court held there was valid adoption of testamentary writing (handwritten
letter) inside unsealed but closed envelope with words “My Will, Agnes Bessie Smith” as words
“My Will” operated as identification and adoption of letter inside envelope and “Agnes Bessie
Smith” was valid subscription
 Williamson v Williamson: where witness whose name was “D Wilson” signed as “DCR
Williamson”, court held that there is no such thing as ‘mistaken signature’
 There must be concluded testamentary intent
 o Draper v Thomason: court held that testator’s writing that “I haven't made a Will, but
everything I have is for Billy” had to be read in context; way and tenor in which it was
written was testamentary intention
o Rhodes v Peterson: court held that letter in which testator wrote “I want you to have 63
Merchiston and all the contents ... I feel better having at least got this down on paper. Do
not lose this letter” because second sentence suggested her wish was formal
manifestation of testamentary intention and third sentence showed this was meant as
testamentary writing – she had in mind that daughter would produce this after her death
to ensure that she’d receive house
o Jamieson’s Exrs: court held that series of thoughts/instructions for solicitor to execute in
will found in deceased’s desk were direction to create will and not intended as will itself;
thus, there was no concluded testamentary intention
o Barker’s Excrs v Scottish Rights of Way Society Ltd: court allowed old copy of will circa
1983 with handwritten amendments and instructions to open another document with still
further instructions to solicitor to be concluded testamentary intention despite execution
of formal will in 1985 revoking older wills because it is open to testator to change their
mind and revoke their will until moment of death; as long as court can sensibly interpret it
as concluded testamentary intention they will give it effect
o Hamilton Petr: court held that testator’s writing that “If Anne is still alive, I want her to have
my wealthy remains – the house, pension, savings and everything else…I hope my family
accept this…IT IS MY WISH” found in their notebook was valid testament because it
complied with 1995 Act – beneficiary was identified; concluded testamentary intention
was set out; “I hope my family accept this’ strongly suggested it was final decision”; and
it was subscribed

RECTIFICATION OF WILLS

 Marley v Rawlings: court held that it isn’t possible to rectify will in Scotland though there could
be declarator allowing partial reduction of it
 2016 Act s3 allows rectification of will if
o Will wasn’t drafted by testator themselves/testator’s instructions – i.e. will was drawn up
by solicitors
o Court is satisfied that will fails to express accurately what was instructed; may have regard
to evidence extrinsic to will
 Application to rectify will must be made within 6 months of testator’s death/confirmation of their
estate (s4)

REVOCATION OF WILLS

 Lauder v Briggs; Clyde v Clyde: court refused to give effect to will that was known to be with
testator but couldn’t be found even though there was copy of it because of presumption that if
testator is known to have their testament which can’t be found on their death they are presumed
to have destroyed it animo revocandi

SOLICITOR’S DUTY OF CARE

 White v Jones: Solicitor owes duty of care and can be liable to potential beneficiaries of deceased
provided it can be demonstrated there is breach of duty of care, causation of loss, etc.
 Holmes v Bank of Scotland: court applied White v Jones decision to Scottish case
 Steven v Hewats: court applied White v Jones decision to inter vivos gifts where there was no
other means of recovering loss

EXECUTOR

 Executor: individual responsible for gathering, administering, and disposing of estate of

deceased person in accordance with testament or rules of intestate succession
 Executor-nominate: executor nominated in testament
o ‘Constructive’ executors nominate is possible if testament fails to identify executor or
identified executor is dead, refuses or is incapacitated (Executors (Scotland) Act 1900 s
3)
 Executor-dative: executor appointed by sheriff, e.g. where deceased is intestate, where
testament has failed to appoint executor-nominate, etc.

BODY AND DEATH

 Anatomy Act 1984 s4(1A) requires writing and witness for donation of body to science

INTESTATE SUCCESSION

 Who can inherit

o Law Reform (Parent and Child) (Scotland) Act 1986 s1, as amended by Family Law
(Scotland) Act 2006 asp s21: abolished illegitimacy
o Adoption and Children (Scotland) Act 2007 ss40 and 44; 1964 Act s23(1): adopted
children only inherit from adoptive parents, not natural parents
o Stepchildren have no rights
o Posthumous children (children born after parent’s death), spouse and children can inherit
o Civil partners have rights identical to spousal rights (Succession (Scotland) Act 1964 ss
2, 8 & 9; Civil Partnership Act 2004 s131)
o Legacies in favour of divorced spouses are assumed to be revoked (2016 Act ss1-2); if
testator still wants to leave divorced spouse legacy, they must execute new will after
divorce and specify that they are aware of 2016 Act ss1-2 and still want to leave them
legacy
o Separated spouses still have ability to claim as spouse
o Cohabitants have discretionary right in intestacy (Family Law (Scotland) Act 2006 s29)
o Juristic persons/trusts can benefit from legacies, e.g. leaving property to charity
o Unworthy heir (haeres indignus) can’t inherit
 Burns v Secretary of State for Scotland: widow was deemed unworthy heir and
denied statutory widows’ pension as she had been convicted of culpable homicide
of her husband despite being given 2-year probationary sentence on basis that
she’d been subject to considerable and sustained domestic abuse so there was
considerable provocation on day she killed deceased
 Hunter’s Exrs Petrs: court held that unworthy heir was to be treated as not entitled
to claim rather than pre-deceasing deceased; codified in 2016 Act s12
 Forfeiture Act 1982 allows court to modify common law rule barring unworthy heir’s
inheritance from unlawful killing (s2) but not if heir is convicted of murder (s5)
 Paterson Petr: court held it could modify rule in relation to person who’d
killed her abusive husband but extent of modification was uncertain
  Cross Petr: court held son convicted of culpable homicide for killing his
father and sentenced for 18 months could receive 99% of estate and was
barred from 1%
 2016 Act ss15-16 repeal 1982 Act and provide that “modify” could mean
completely dispensing rule
 Tannock v Tannock: court held that unworthy heir rule is concerned only
with killer; thus, son convicted of perverting course of justice for removing
and disposing of knife from his stepfather’s neck was entitled to inherit
legacy left by stepfather to wife whom failing his stepson
 Distribution
o Prior rights – statutory rights given to surviving spouse/civil partner
 Dwelling-house (Succession (Scotland) Act 1964 s8)
 There must be “relevant interest” of deceased in heritable property (s8(1))
 Any secured debt is deducted from value of heritable property to determine
deceased’s interest (s8(6)(d))
o If house is co-owned, deceased’s interest is half its value and any
secured debt should also be halved before deducting it from
deceased’s interest
 Surviving spouse must be “ordinarily resident” in dwelling-house (s8(4)(a))
 if interest is worth £473 000 or less surviving spouse inherits interest itself;
if interest is worth more than £473 000 spouse receives sum of £473 000
 Plenishings (1964 Act s8(3))
 Surviving spouse is entitled to choose £29,000 worth of plenishings in
dwelling-house if ordinarily resident in dwelling-house (s8(4)(a))
o If plenishings are worth less than £29,000, surviving spouse takes
all; if plenishings are worth more than £29,000 SS must select up to
value
 Family Law (Scotland) Act 1985 s25: presumption that married couple
equally co-owned moveable contents of house; thus, where dwelling-house
is co-owned total value of plenishings must be halved to acquire surviving
spouse’s interest
 Financial provision (1964 Act s9)
 If there are children (issue) surviving spouse is entitled to payment of
£50,000 (s9(1)(a))
 If there are no issue: £89,000 (s9(1)(b))
 If there is not enough estate for payment of financial provision, all intestate
estate is transferred to surviving spouse (s9(2))
 Financial provision payment of £50 000/£89 000 is to be paid proportionally
from remaining moveable/heritable estate (s9(3))
o Legal rights: indefeasible rights available to relict and issue in both testate and intestate
succession with regard to moveable property that arise at common law
o Relict’s (surviving spouse’s/civil partner under Civil Partnership Act 2004 s131(2)) right
 If there are surviving children (issue) relict is entitled to 1/3 of value of moveable
estate
 If there are no surviving issue: ½ of value of moveable estate
 o Cohabitant has right to apply for award from court (e.g. order for payment/transfer of
property) under Family Law (Scotland) Act 2006 s29 after distribution of prior and relict’s
right but before distribution of legitim and free estate (s29(10)) – only in intestacy
 Savage v Purches: In deciding whether to exercise its discretion to make payment
to cohabitant, court took into account nature of relationship and duration of co-
habitation; as nature of relationship was problematic to prove and co-habitants only
lived together for 3 years, court refused to exercise its discretion and make order
 Windram v Windram: As cohabitants lived together for 20 years, had children
together and surviving cohabitant would be looking after deceased’s children, court
exercised its discretion and ordered that cohabitant receive dwelling-house and
payment of £34 000
 Kerr v Mangan: court held that calculation of cohabitant’s entitlement is based on
estate available for distribution under Scots law and thus didn’t take into account
heritable property located abroad which would be distributed according to Irish law
under Scottish IPL rules
 X v A (No 1): court held that in relation to statutory requirement that cohabitant
raises action within 6 months of deceased’s death 6-month period begins when
executor is appointed; thus, cohabitant claims couldn’t be prevented by deliberately
not confirming executors
o Issue (children/descendants of children) are entitled to legitim fund
 If there is surviving relict: 1/3 of value of moveable estate
 If there is no surviving relict: ½ of value of moveable estate
 Representation doctrine applies to legitim fund for descendants of child (1964 Act
s11)
o Free estate: first relevant person entitled to inherit under 1964 Act s2 takes all of remaining
estate
 Representation doctrine applies to free estate (1964 Act ss5-6)
 Calculation in relation to representation
o per stirpes distribution where claimants are not all same relation, e.g. there are children
of pre-deceasing child as well as surviving children – children will get larger amount than
grandchildren because grandchildren share their parent’s share and can’t get more than
what they were entitled to
o per capita distribution where claimants are all same relation, e.g. there are either children
of pre-deceasing child or surviving children – payment is equally divided
 Artificial intestacy: where someone deliberately creates situation of intestacy and renounces
legacy so estate is divided according to intestacy rules
o Kerr Petitioner: surviving spouse who is universal beneficiary with issue will get more by
artificially creating intestacy than if they claim under will because issue can claim 1/3 of
moveable property as legitim fund, leaving surviving spouse with remaining 2/3 of
moveable property; however, if surviving spouse renounces legacy whole estate will fall
into intestacy; as surviving spouse is first person who takes property in intestate estate
they take everything under s9 financial provision; thus, issue won’t be able to claim legal
right because estate has been exhausted
 Partial intestacy: where testament fails to dispose of whole estate, e.g. there is no residuary
legacy; residuary legacy is defective; some legatees rejected their legacy, etc.
o Complex priority rules if spouse
o s9(3): spouse claiming legacy must deduct that legacy from any prior right they’re claiming
regarding intestate estate
TESTATE SUCCESSION

 Distribution
o Debts and taxes
o Legal rights
o Legacies – particular clause in will that leaves something to destinated person
 Type of legacy determines priority of that legacy
 Special/specific legacies: specific asset/identifiable set of assets left by
deceased; includes shares and right to debt; can be whole/proportion
 General legacies: certain amount of certain type of thing; not specific
identified thing, e.g. 300kg of silver
o Testator leaving 300kg of silver in their spare bedroom would be
special/specific legacy but leaving generic amount would be general
legacy
o Money is most common type of general legacy; known as ‘pecuniary
legacy’
 Residuary legacies: legacy disposing of any remaining estate after all other
claims on estate dealt with
 Universal legacies: legacy that disposes of entire estate to one person
 Class legacies: legacy left to class of individuals, e.g. “children of Andrew
Smith”; benefit of legacy vests in legatees alive at moment of deceased’s
death so children who pre-deceased and were born after deceased’s death
don’t take legacy
 Abatement: If estate is insufficient to meet testator’s wishes, it is necessary for
elements of testament to ‘abate’
 Residue abates first
 General legacies abate before special legacies
 Legatees of same class of legacy suffer pro rata abatement
 If estate isn’t sufficient to meet debts without subject of special legacy,
subject of special legacy must be sold to meet debts and special legatee’s
rights transfer to net proceeds of sale
 Interpretation
 Hay v Duthie: interpretation of will must be from testator’s chair and based
on testator’s knowledge; evidence may be admitted of testator’s intentions
concerning legacy
 Lawson’s Exr v Lawson: court held that “belongings” didn’t cover heritable
property and “money” included cash, bank account and investments
 Crozier’s Tr v Underwood: court held that testator’s leaving to his
granddaughter “residing their Also all my other affect” covered heritable
property, especially taking into account evidence that granddaughter lived
with testator in that property
 Cathcart’s Trs v Bruce: testator had left residuary legacy in favour of sons
of General Alexander Fairlie Bruce who didn’t exist but General Alexander
James Bruce and Mr Alexander Fairlie Bruce did exist; taking into account
evidence that General had sons aged between 12-24 and Mr Bruce had
sons aged 34-50 and letter from deceased’s wife who referred to sons as
young men, court held that testator was referring to General Alexander
James Bruce
  Nasmyth’s Trs v NSPCC: court held that Scottish testator’s legacy to
“National Society for the Prevention of Cruelty to Children” which only
operated in England was actually intended for “The Scottish National
Society for the Prevention of Cruelty to Children” because testator probably
didn’t know that Scottish charity was different from UK-wide charity
 Couper’s JF v Valentine: court held that legacy to “my wife, Mrs. Dorothy
Couper” wasn’t condition but clear identification of her so Mrs. Dorothy
Couper was still able to take benefit of legacy after divorce
o 2016 Act s1(2): where testator leaves legacy on spouse and marriage
is terminated and no change is made to will before testator’s death,
spouse is treated as having pre-deceased testator for purposes of
will
 Ormiston’s Exr v Laws: court held that legacy left to “my fiancée Mrs. (!)
Sylvia Martis” wasn’t condition but clear identification of her so she was still
able to take benefit of legacy even though she was never his fiancée and
testator went on to marry someone else
 Hardie v Morison: court held that deed provision ordering testator’s estate
to be used to purchasing shop to promote free thought was void from
uncertainty
 Ademption
 If property subject to special legacy is no longer part of estate, special
legacy is adeemed and therefore void
 Cobban’s Exrs v Cobban: court is only concerned with factual question of
whether testator owned property; if testator didn’t own it, there is no legacy
regardless of testator’s intentions
 Ogilvie-Forbes’ Trs: court held that land that was subject of special legacy
which testator then transferred to company of which he was sole
shareholder outwith estate was example of ademption; legacy was thus void
 Tennant: court held that inchoate sale transfer (incomplete transfer of
shares as they hadn’t been registered with company yet) meant that
property remained in testator’s estate so ademption couldn’t have occurred
 Gordon’s Excr v Turner 2012 SLT 877: court held legacy of “my house or
suchever house that I own at time of my death” to be anti-ademption clause
as it takes into account fact that if circumstances change testator still intends
to leave house they own to specific person
 Erskine III.9.10.; Meeres v Dowell’s Exr: where there is legacy of property
that belonged to someone else at time of testament as well as, presumably,
at time of testator’s death (legatum rei alienae), if it can be proved that
testator knew legacy was of subject that didn’t belong to them it would be
presumed to be instruction to executor to purchase subject from its owner
and give it to legatee which creates in legatee right to make this effective in
court; if it is proved that testator didn’t know legacy was of subject that didn’t
belong to them neither subject nor its value can be claimed
 Death of legatee
 If legatee predeceased testator, legacy has lapsed
 However
 o If there is express destination over (e.g. “to A whom failing to B”) A
will get legacy unless they die in which case B gets legacy; if both
are alive, A takes legacy alone
o If there is survivorship destination over (e.g. “to A and B equally
between them and to survivor”) they will get equal share if both are
still alive; if either one is dead, survivor takes their share and other’s
share too
o If there is implied destination over (destination over implied by law to
prevent destination failing), legacy will go to that destination
 Accretion: If legacy is left to multiple people (e.g. £10 000 to A
and B) and one of these people pre-deceases, law presumes
that share of pre-deceased ‘accresces’ to another so B would
get £10 000 if A died and vice versa but if both are alive they
get £5000 each and there is no need for destination
 In order to prevent accretion testator must use words
of severance, e.g. “£10,000 to A and B equally between
them”
 2016 Act s6(2): where direct descendant of testator is left
legacy and was alive when will was executed but legatee dies
before legacy vests, legatee’s issue will be entitled to legacy
unless it was clear testator intended otherwise – conditio si
institutus
 2016 Act s6(3): express destination over will take precedence
over implied destination over
 Common calamity
o If survivorship is unclear in relation to group of legatees (people entitled to receive
something under group legacy) dying in same incident, Succession (Scotland) Act 2016
s9 provides rules
 s9(1): each is to be treated as having failed to survive other for all purposes
affecting title or succession to property; thus, each of their estates will be
distributed as if each of them can’t inherit
 s9(2): allows destination over (mechanism whereby legacy can put in place
contingency for possibility that testator’s first choice of legatee may pre-decease
them and nominate second choice of legatee) to take effect in favour of person
nominated as second choice if testator and first choice died in same incident and
survivorship is unclear
o Lamb v Lamb: where evidence on balance of probabilities shows that testator died first,
there is no need to apply s9(1) presumption
 Rights (e.g. legal rights, prior rights, intestate succession rights, unconditional legacies) become
real and entitled – vest – in person who wants to claim them at moment of testator’s death
 Conditional legacies, and some interests in trusts, may remain unvested at moment of testator’s
death if condition is in accordance with good morals and not satisfied
o Fraser v Rose: court held that legacy requiring legatee not to live with their mother was
void and treated it as pro non scripto (as if unwritten) as it was contrary to good morals
(contra bonos mores); thus, legatee was able to take legacy without being subject to such
unreasonable condition
o Lindsay’s Exr v Forsyth: held that direction for sum to be invested for purposes of placing
weekly supply of fresh flowers on testator’s grave and their mother’s was invalid as: it
 conferred no benefit on any person or class of persons; was intended merely to perpetuate
act begun by testatrix; and it was too excessive, unreasonable and unclear to receive
effect
 If individual renounces their legal rights, it doesn’t increase shares of other people entitled to
legal rights
 Approbate and reprobate rule (1964 Act s13): individual can’t claim legal rights and claim under
a legacy at same time; must choose one or the other
o Stewart v Bruce’s Trs: legatee also entitled to legal rights is allowed reasonable time to
choose which to take
o Naismith v Boyes: confirmed that legal rights in relation to intestate estate can be claimed
if there is partial intestacy (i.e. by virtue of there being no residuary legacy or one of
legacies has failed) in addition to legacy
 Destinations regulate way in which piece of property will devolve in event of people predeceasing
o Destinations over: created by testament/trust to regulate position if someone predeceases
o A leaves legacy “to B whom failing C”
 Beth is known as “institute”
 Charles is either “conditional institute”/“substitute” which determines who can claim
legacy when institute survives deceased
 If B dies before A, C takes benefit of legacy
 If C is conditional institute C has no claim to legacy left by A if B survives for short
amount of time after A dies but nevertheless still dies; B’s estate takes benefit
 if C is a substitute C might still be able to claim legacy even if B survives for short
amount of time but nevertheless still dies
 How to determine if it’s conditional institution/substitution
 Firstly law provisions of legacy are assessed, i.e. if it refers to either of
these/expressly creates them
 If wording isn’t clear, presumption under 2016 Act s8 is relied on: All whom
failing destinations are considered to be conditional institutions unless
express words to contrary
 Special destination: writing that alters transfer of property after death and creates substitutions
but isn’t formal testamentary writing; contained in disposition and registered in Land Register
o A dispones heritable property “to B whom failing to Cassandra”
 B is institute
 C is substitute
o In order for special destination to be effective
 institute must still own property in question at their death
 substitute must still be alive when institute dies
o Effectiveness of special destination can be undermined by evacuating destination which
can occur by
 Disposal of property – if institute as owner of property disposes of it, there is nothing
for destination to carry (Povey v Povey’s Trs)
 Death of substitute – if substitute predeceases institute, destination falls
 Substitute renounces destination
 Legacy by institute if
 Institute has power to evacuate which is determined by looking to deed itself
or presumptions
 o Perrett’s Trs v Perrett: in situation where there is survivorship
destination and both parties have paid towards purchase price, there
is no power to evacuate
 Purported evacuation complies with formalities contained in 1964 Act s30
o Specific reference must be made to destination to be evacuated, e.g.
naming special destination and person to whom property will go,
referring to land registration code, titles, deeds, etc.
o There must be clearly declared expression of intention to evacuate
destination
 Divorce where there is survivorship special destination between spouses (2016 Act
s2)