Head 6: Testaments

Question 1

What is a testament?

Answer 1

A testament is the Scottish name for a will. This says what is to happen to the granter’s estate on death.

Question 2

What is a trust and disposition testament?

Answer 2

A ‘trust disposition and settlement’ is a testament that contains a clause conveying the estate to the executors as trustees for the beneficiaries. There is no difference between these two in modern law.

Question 3

What are the conditions required to be met for testaments to be effective?

Answer 3

1. Must be 12 years old to write a valid will (Age of Legal Capacity (S) Act 1991 s 2(2))
2. In order to carry out a valid juridical act (including making a will) you must have legal capacity

Question 4

Adults with Incapacity (S) Act 2000 t

Answer 4

Under this act there is a detailed code about how the representatives of someone who is an incapax can deal with the property of the incapacitated person. There are also cases concerning the powers this Act grants

Question 5

G Applicant 2009

Answer 5

In this case an elderly man (82) had become incapacitated and there was an application for the appointment of a guardian. One of the powers that had been asked for was the power to execute a will on behalf of the incapax. The incapax had written a will himself in 2004 when he did have capacity. But the will was defective mainly because it appeared to disinherit the main beneficiary. The guardian asked for power to execute a new will based on the true intentions of the testator when he wrote the 2004 will. The court held that this was allowed. This is one of the few occasions that a sheriff court has exercised testamentary power on behalf of an incapax. The soundness of the decision is uncertain.

Question 6

T Applicant 2005

Answer 6

an 81 year old lady suffered from Alzheimers. The son (her guardian) asked the court to allow his solicitor to execute a codicil (an amendment to a will) to ensure that the will represented the spirit of the testament (because in this case the will was predicated on the idea that the son would receive the house which was the biggest asset but the house was having to be sold to pay for healthcare etc, thus the will was going to be undermined by this sale). The court allowed the codicil on the basis that it allowed the true intention of the lady when she wrote the will to be realised.

Question 7

H, Applicant 2011

Answer 7

the court refused a similar application to T above. Again there was an application to grant a codicil amending the will (which had left the house to the applicant and the residue to charity.) The incapax’s house was needing to be sold and therefore the applicant was not going to get anything. So the applicant asked the court to grant a codicil allowing 70% of the estate to go to the applicant and 30% to the charities. But during the hearing it emerged that the file note (the note that all solicitors keep when preparing wills etc) disclosed that the incapacitated person had clearly said that they only wanted the house to go to the applicant – there was no indication of a general intention to benefit. It just so happened that the house was the biggest asset – but there was no evidence to suggest the incapax wanted the applicant to receive the biggest portion of the estate. In this situation the court would not rewrite the will.

Question 8

Summary Application Under the Adults with Incapacity (S) Act 2000

Answer 8

⁃ The representative had gone to the court when there was no testament at all and asked if it was possible to execute a testament on behalf of an incapax. The Sheriff Principle held that this required an examination of the Adults With Incapacity (S) Act 2000.
⁃ Under s 1(4)(a) - this gives the Sheriff Principle power to intervene in certain circumstances. It was held that this could cover executing a will on behalf of someone who was incapax (i.e. creating a will when there was no preexisting will).
⁃ However the Sheriff Principle refused to go far as he was invited to by the solicitor, holding that although the court would be willing to grant the power to execute the will, there must have been evidence of testamentary intention before the incapax lost their capacity. Thus the court will not permit the applicant to draw up a will on the basis of what they think the deceased might have wanted.

Question 9

What does execution of a will mean?

Answer 9

Simply means creation

Question 10

How is the execution of a will regulated?

Answer 10

RW(S)A 1995

Question 11

How is a will deemed valid?

Answer 11

1. The first requirement for a valid testament is valid writing (s 1(2)(c))
2. Under s 2(1) a testament must be formally subscribed to be valid
3. Under s 7(1) the definition of ‘subscribed’ is given as meaning ‘signed at the end of the last page’. Under s 7(2) ‘signed’ can either be
   ⁃ 1) Full name
   ⁃ 2) Surname plus forename/initials
   ⁃ 3) Other name, description, initial or mark and usual method of signing; or intended it as signature.
   [No subscription, no will].

Question 12

How is a will deemed probative?

Answer 12

⁃ This is the presumption that a testament was validly signed.
⁃ So for the purposes of probativity, the testament must bear to be subscribed by the granter under s 3(1)(a).
⁃ The testament must also be signed[ The witness need not subscribe the testament - so the witness doesn’t need to sign at the end of the document.] by a witness to be probative (s 3(1)(b)).
⁃ Under s 3(2), if the testament is more than one sheet[ One sheet is e.g one piece of paper. One sheet can have two pages. While the requirement is simply that one side is required to be signed, in practice, the granter will be suggested to sign each page (side).] it must be signed by the granter on each sheet.
⁃ NB the final sheet requires “subscription” (i.e. signing at the bottom of the page) but all the other sheets only require “signing”. By signing, the location of the signature on the other sheets is not important, however it cannot be by the longstop ((c), I think, method of signing).
- If a testament is importable, there is a special affidavit procedure for establishing that it was validly executed (RWSA s 4).

Question 13

Draper v Thomason 1954

Answer 13

Widow had sent a letter to her sister which said: “By the way while speaking of dying! Should anything happen to me, (which it will one day) I haven’t made a Will, but everything I have is for Billy. Knowing that he will do the right thing.” This letter was signed “Connie”. The court held that this was a valid signature and thus this was a valid ‘will’.

Question 14

Rhodes v Peterson 1972

Answer 14

Mother sent the following to her daughter: “Dearest Dorothy, I am so glad you are coming up for a break next month and it will be lovely to see you again. I have been thinking a lot about you recently and I am concerned about your future. Security especially as you have no him you can call your own…Now I feel better having at least got this down on paper. Do not lose this letter…Lots of love, Mum.” This was held to be a valid subscription and thus a valid will.

Question 15

McLay v Farrell 1950

Answer 15

Despite the lenient attitude in Draper and Rhodes, the courts can be more strict in some circumstances:

⁃ The testament was “I leave to Lizzie McLay Farrell £50, C Herken £50, Robert Farrell £20, signed Jane McLay. All to Anne McLay”
⁃ The problem here is that the signature did not take place at the end of the document, since after the signature it states “All to Anne McLay”. The court held that the subscription was the end of the testament so everything which follows this is not considered to be part of the testament. So the final legacy (“All to Anne Mclay” was not valid since it came after the subscription).

⁃ The reason for the decision in McLay is that otherwise it would be too easy for third parties to add things in.

Question 16

What is adoption of a document?

Answer 16

In certain circumstances you can ‘adopt a document.’ [ I.e. Although you didn’t execute a document you can execute a document which adopts another document)]’

Question 17

Davidson v Convy 2003

Answer 17

The deceased had handwritten on a single piece of paper, a number of testamentary instructions. Crucially she had not subscribed or signed this piece of paper. She then placed the paper in an unsealed envelope and wrote on the envelope “My Will, Agnes Bessie Smith.” The court held that this was a valid adoption of the contents of the envelope. So although she hadn’t subscribed the paper itself, since she’d put it inside an envelope and subscribed this, it was held that this was a valid adoption of the document inside.

Question 18

What is a codicil?

Answer 18

A codicil is a later document that alters an existing testamentary document (e.g. amending a will). Codicils still must be in writing and be subscribed since they are a form of testamentary writing.

The problem with codicils is that they can be very difficult to keep track of.
⁃ Burn’s Trs v McKenna 1940 - 49 codicils which purported to amend the testament.

So it is better to execute a new will instead of using codicils.

Question 19

What is notarial testament?

Answer 19

Sometimes a testator is mentally capable but physically unable to execute. In these circumstances they can ask a notary public to execute on their behalf under s 9(1) RW(S)A.

Question 20

What is a mistaken signature?

Answer 20

In Scotland it is said that there is no such thing as a mistaken signature - this rule comes from the following case:
⁃ Williamson v Williamson 1997
⁃ The testator’s name was R Williamson. The witness’s name was D Wilson. The witness signed as DCR Williamson. The case went to court and the parties tried to argue that D Wilson had mistaken his signature.
⁃ The court disagreed and held that there is no such thing as a mistaken signature.
⁃ Look up this in a book - not sure of the result

Question 21

Lauder v Briggs 1999

Answer 21

The custody of the testament (i.e. who has the testament) is important.

⁃ Testator made a will in 1978 which was to be kept with the solicitors. The testator then moved house in 1989 and took possession of the will in her house. In 1995 she died. The will could not be found anywhere.
⁃ A potential beneficiary under the will sought to ‘prove the tenor’[ Where you’re trying to prove that the contents of a will should be given effect to] of the will by using a copy of the will which the solicitors still had.
⁃ However, the court held that the presumption that if a deceased person was known to be in possession of a testament and then at their death the testament couldn’t be found then the presumption was that they destroyed it themselves. (Therefore the custody of a testament is very important).

Question 22

*Draper v Thomason 1954

Answer 22

In this case where the testator stated “I haven’t made a will, but everything I have is for Billy” was enough to demonstrate concluded testamentary intent.

Question 23

*Rhodes v Peterson 1972

Answer 23

A mother wrote to her daughter?: “Dearest Dorothy…I have been thinking a lot about you recently and I am concerned about your future…As the boys have their own houses…I want you to have 63 Merchiston and all the contents…When I am gone so that I can rest in peace in the knowledge that you are not homeless…I am not going to say anything to John or Angus about this…I feel better having at least got this down on paper. Do not lose this letter…lots of love, Mum.”
⁃ The pink highlighted above was held to be sufficient to constitute concluded testamentary intention.

Question 24

Jamieson’s Exrs 1982

Answer 24

However in some other cases the courts have refused to recognise concluded testamentary intent:

⁃ A letter was found in deceased lady’s desk with instructions about how to draw up the testament. The letter was not a testament, rather instructions on how to draw one up. It stated.[ “I should like if the sum of money left to St Mary’s on the Rock was doubled - also that left to Mr David Alexander to be doubled. If the residue of my estate to be divided between my four cousins exceed 5000 pounds I should like that excess amount to be divided between the two charities in my will. I do hope that this can be done. I have been having some pain of late and I just wanted to note this down. E R Jamieson 22.3.80.”]
⁃ The court held that this was not concluded testamentary intention - rather it was probably instructions to her solicitor on what the testament should have said. It looks forward to a formal deed so it cannot have testamentary effect.

Question 25

Barker’s Excrs v Scottish Rights of Way Society Ltd 1996

Answer 25

⁃ A formal will was executed in 1985 which revoked all older wills. In 1991 (just before death) the testator sent a copy of an old will with a number of handwritten amendments and instructions to open another document with still further instructions to the solicitor.
⁃ The court held that the concluded testamentary intention is ascertained on death, thus the 1991 instructions were clearly concluded changes to the testator’s testamentary intention.

⁃ NB Barker and Jamieson are not particularly consistent with each other. Look up.

Question 26

When can someone revoke their will?

Answer 26

Anytime up until their death

Question 27

How can revocation take place?

Answer 27

1) by destruction

2) by express revocation

Question 28

*Clyde v Clyde 1958

Answer 28

The easiest way to revoke a testament is to destroy it.

• Here the deceased (GC) had executed a will in 1936. In this will he left everything to his nephew (JC). The will was left with the solicitor’s for 12 years until 1948 when GC asked for the will to be returned. In 1955 GC died and two copies of the will were discovered but not the will itself.
  ⁃ The court applied the same presumption that was applied in Lauder (if someone is known to have a testament in their possession and it can’t be found after their death then the presumption is that they destroyed it deliberately). Thus the will was presumed to have been destroyed and thus revoked.

Question 29

What is express revocation?

Answer 29

A will can be revoked without destroying it. The most common situation in which this occurs is where someone executes a new will. It is general practice in a new will to have a revocation clause which revokes all previous testamentary writings (even if they are not destroyed).

Nevertheless, even if there is an express revocation, it is good practice to destroy previous wills too.
⁃ The reason is that it is possible that an old will can be revived:

Question 30

*Bruce’s JF v LA 1969

Answer 30

⁃ James Bruce executed a will in 1945 which would dispose of his entire estate. In 1949 he drew up a new will including a standard revocation clause (revoking all previous testamentary writings). He also took possession of this 1949 will.
⁃ James Bruce died and there is no sign of the 1949 will. Therefore the presumption (that a person in possession of a will which can’t be found on death is presumed to have destroyed it) applied.
⁃ Since the 1949 will revoked the 1945 will, the ‘destruction’ of the 1949 will has the effect of revoking the revocation clause. Thus the 1945 will is revived and effective.

Question 31

What is implied revocation?

Answer 31

There are a number of situations where it is possible for a testament to be revoked by implication:

1) Implied revocation by inconsistency of two testaments

If there are two testaments present (and there is no express revocation) then the court will try to give effect to both of them to the extent that they are not inconsistent.

2) Implied revocation by virtue of events (conditio si testator sine libbers decesserit)
⁃ If someone has made a will and then they subsequently have children there is a rule that the post natus[ The child(s) who have been born after the will.] can challenge the testament. This operates in a similar way to implied revocation[ So it seems that where the presumption operates, the testament will be revoked. Check this] but it is important to recognise that this is only a presumption that all rests upon an equitable fiction that no one would want their will to be unaltered once they’ve had a child. So while the presumption can operate in some circumstances, it can also be rebutted.
⁃ If the post natus wants to benefit from the presumption then they must prove that the parent would have changed their will.

Question 32

Duthie’s Trs v Taylor 1986

Answer 32

Duthie left two wills left at different times. Neither of these wills contained a revocation clause. Both contained a number of pecuniary and special legacies, some of which were the same and some were different.
⁃ The ones which were the same would be given effect to without any difficulty, but those that were different, the court would have to apply the later testament rule[ ??].
⁃ So the earlier will left a residue to a number of charities. The second will didn’t mention a residue and contained various other pecuniary and special legacies but no legacy of residue. The court held that this inconsistency was to be resolved in favour of the later one.
⁃ Furthermore there was a specific legacy of a house which in the earlier will was left to a house keeper but which was conditional on the fact she continued to be a housekeeper. In the second will the house was left to the housekeeper but it did not contain this condition. The court held that the later testament prevailed but the earlier one remained in force insofar as there was an inconsistency, so there was no condition on the earlier legacy of residue and it was effective.

Question 33

Stuart Gordon v Gordon (1899)

Answer 33

⁃ A lady had been in very poor health while pregnant and there was significant evidence that she’d thought about her own mortality and how her estate should be distributed in the event of her death. She had an opportunity to change her will but did not.
⁃ She gave birth to her child then died. The court held that the conditio rule could not apply since the presumption was rebutted (because she had an opportunity to change her will but still chose not to, therefore there was no indication that she would have wanted it to be changed).

Question 34

Milligan’s JF v Milligan 1910

Answer 34

⁃ Child born after a testament had been written and then the child was alive for 10 years before the parent died. It was argued that since the child was 10 and the testator had still not changed the testament, one could infer that this was a deliberate choice, thus the presumption ought to be rebutted.
⁃ However the court disagreed, holding that it doesn’t matter how long the child has been alive: for whatever reason, the presumption remains that the testator just didn’t get around to fixing / altering the will. Therefore the presumption applied and thus the child could benefit from the conditio rule.

Question 35

Stevenson’s Trs v Stevenson 1932

Answer 35

Held that it is only the post natus (or their representatives) who can challenge the will - you can’t have other people challenging the will on the basis that a child has been born after a will was originally executed.

Question 36

Elder’s Trs v Elder (1894)

Answer 36

⁃ Testator executed a will. At the time of execution of the will he already had children. He then had another child after the will.
⁃ The question was whether the post natus could challenge the will even though there were children when the will had been written. The answer was yes - the post natus could challenge the will.

Question 37

Nicolson v Nicolson’s Trs 1922

Answer 37

⁃ Deceased had executed two wills. The first will provided for the wife, daughter and later children. The second will provided that everything was to go to the wife.
⁃ There was one daughter alive when the second will was executed but another daughter was born afterwards. The second daughter successfully challenged the second will which has the effect of revoking this second will. Accordingly, the first testament revived and thus governed the situation.

Question 38

Greenan v Courtney 2007

Answer 38

⁃ Man had an existing testament dated from the time when he was married to his first wife. He then remarried and had two children with the second wife post natus.
⁃ The first wife wished to prove that the post natus children couldn’t challenge the testament on the basis that she kept in very close touch with the deceased and that he was secretly still in love with her and had told her on the phone that she was still going to receive everything.
⁃ The court reiterated that a child born after the testament was executed is able to challenge the testament - this is the presumption and the first wife must rebut it. In this case the first wife was unable to rebut the presumption.

Question 39

When and why would a will be reduced?

Answer 39

In accordance with general principles (of contract law) a testament can be challenged in an action for reduction as being either void or voidable, for example is suspicion surrounds the making of a testament.

⁃ (Void if forgery, insanity, force and fear, <16)
⁃ (Voidable if: undue influence, facility or circumvention)

⁃ Facility and circumvention is a particular danger in these situations because often the older person has declining faculties and are more susceptible to undue influence.

Question 40

What is required to successfully challenge a will on the ground of facility and circumvention?

Answer 40

In order to successfully challenge a will on this ground one must prove that there was: 1) facility [ Weakness of the mind.], 2) circumvention [ Taking advantage of this weakness.] and 3) harm.

Question 41

MacDougal v MacDougal’s Trs 1931

Answer 41

Court held there wasn’t sufficient evident for facility and circumvention.

Question 42

West’s Trs v West 1980

Answer 42

Again the court held there wasn’t sufficient evident for facility and circumvention.

Question 43

Pascoe-Watson v Brock’s Exr 1998

Answer 43

In a proof before answer the court held there was enough evidence of facility and circumvention for the case to go to proof.

Question 44

Rafique v Ashraf [2013]

Answer 44

??

Question 45

Wheeldon’s Excr v Spence’s Excr [2014] CSOH 69

Answer 45

Pre-death undertakings/offside goals?

Question 46

Is rectification possible?

Answer 46

No but an alternative solution possible

Question 47

Marley v Rawlings [2014] UKSC 2.

Answer 47

??

Question 48

What is the duty of care owed by solicitors to legatees?

Answer 48

Solicitor’s must be careful since in certain circumstances they are found to have a duty of care to potential legatees[ I.e. you might be liable not just to the testator but to persons who were supposed to inherit under a will which you’ve made a mess of.].

Question 49

White v Jones [1995]

Answer 49

For a long time it was thought that the legal profession were immune from such suits. However in the English case of White v Jones [1995], the HL reversed this for English law. In this case the solicitor had been asked to execute a will with legacies in favour of certain beneficiaries. The solicitor failed to prepare such a will and then the testator died. The potential beneficiaries lost out since the will hadn’t been created, they could not benefit. The court held that these individuals were owed a duty of care in tort as a result of an assumption of responsibility.

Question 50

Holmes v BoS 2002

Answer 50

This rule was adopted for Scots law in the case of Holmes v BoS 2002:
In this case the testatrix had told a bank to execute a will leaving a legacy in favour of the nephew and niece. The bank didn’t do this within two weeks and therefore the nephewa and niece lost out. They sued the bank for the amount they would have received if the new testament had been prepared and signed, averring that the bank owed them a duty of care which they had breached by their delay. The action was held to be relevant. It was held that a duty of care was owed to the nephew.

Thus as a solicitor it is helpful to pay attention to the health of your client - in Holmes there was a suggestion that she could die at any moment so it would have been useful to expedite the testament. Two weeks definitely appears to be too long (but the courts haven’t definitively stated what length of time is acceptable.

Question 51

What are will substitutes?

Answer 51

Will substitutes do similar things to a will but aren’t will’s in themselves. They include:
⁃ Liferent
⁃ Trusts
⁃ Special destinaitons
⁃ Donatio mortis causa
⁃ This is where A makes a gift to B but it is open to revocation (e.g. A can ask for the gift back at any time). If A does not ask for it back before they die then B gets to keep it.

Question 52

Morris v Riddick (1867)

Answer 52

M donated to R, stating that he could keep it if M died. This was held to be a valid donatio mortis causa.

Question 53

Who can write a will?

Answer 53

Anyone can write a will. However there are restrictions on how you can write a will on behalf of someone else for money.

In particular if you create a will which will provide for the appointment of executors[ Which most do.], you really need it to be executed by a solicitor. (Solicitors (S) Act 1980 s 32(3)(a)).

Under the Legal Services (S) Act 2010 there is reform coming to allow greater scope for non-solicitors to write testaments for money.

Under the European Communities (Lawyer’s Practice) (S) Regulations SSI 2000/121, reg 13 although many lawyers from different parts of the EU are allowed to practice in different parts of the EU, lawyers from certain jurisdictions are not allowed to execute testaments in Scotland.

Question 54

What are the upcoming reforms dealing with wills?

Answer 54

Legal Services (Scotland) Act 2010 Part 3

	- ss 90-100 extension of confirmation services 

	- ss 101-112 regulation of will writing services 
En passant, note also European Communities (Lawyer’s Practice) (Scotland) Regulations SSI 2000/121, reg 13: “A registered European lawyer is not entitled, by virtue of regulation 6(1), to prepare for remuneration any deed for obtaining title to administer the estate of a deceased person unless he has a home professional title obtained in Denmark, Germany, the Republic of Ireland, Austria, Finland [, Sweden, Cyprus, Iceland, Lichtenstein, Norway or Solvakia].