Law of Succession and Trusts - Lecture 5 - Legacies
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Course
Law of Succession and Trusts (LAW09123)
Institution
Edinburgh Napier University (ENU)
Class notes from fifth lecture of the module Law of Succession and Trusts. Lecture covers legacies of succession in Scots law. Important notes are highlighted, and case descriptions are given.
Author achieved first-class grade for the module.
Where there is a valid will, the deceased’s estate will be distributed in accordance with its provisions.
Once debts have been paid and legal rights have been claimed, the remaining estate is used to pay
out any legacies left by the deceased.
Some aspects of succession law were changed by the Succession (S) Act 2016, so be wary of using
sources that were written before 2016.
A number of older common law rules were abolished by the 2016 Act.
Legacies
The defining characteristic of a will is that it contains legacies (also known as bequests).
A legacy is a statement by the testator indicating what is to be done with a particular part (asset) of
the estate after his death.
The legacy will indicate a named person (the legatee or beneficiary) and an asset which that person is
to receive.
Example:
“I, Leslie [middle name redacted] Dodd, bequeath to my colleague James McDougall the limited
edition Fallout 3 bobblehead that I keep on my desk at home.”
Legacies are usually categorised according to the nature of their subject.
Categories of legacy
There are five broad categories of legacy:
• A special legacy (also known as a specific legacy) is a legacy of a particular named
asset. I.e. it is a specific named asset, like a Fallout bobblehead given to James.
• A demonstrative legacy is a sub-set of the specific legacy. It is a legacy of a specific
item from a specific source.
• A general legacy is a bequest of a certain quantity of property which cannot be
distinguished from other property of the same type. Talking about money, you cannot
tell one £10 note form another.
• A residual legacy (also known as a residuary legacy) is a bequest of whatever remains
of the estate after all debts have been paid and all legacies have been satisfied.
• A universal legacy is a legacy stating that everything in the estate is to be given to a
single legatee.
,Specific legacy
The specific or special legacy is a bequest of a particular named asset, such as a house or a piece of
jewellery or a neon flamingo.
The asset vests in the legatee upon death of the testator, meaning that the legatee gains an automatic
and indefeasible right to the property.
They do not actually get the property immediately because the executor has to go through the process
of distributing the estate and doing calculations. But the right to receive the property vests in them.
In other words, the legatee gains a proprietary right over the subject of the legacy at the moment the
testator dies and then has a right to have the property delivered or transferred by the executor.
If the subject of the legacy no longer exists or is no longer part of the testator’s patrimony, the legacy
is said to adeem, which means the legacy is void and cannot be paid. The legatee has no right to claim
any other property in its place.
Demonstrative legacy
A demonstrative legacy bequeaths a specific item from a specific source.
Usually, a demonstrative legacy is a legacy of money from a particular bank account. For example, a
legacy of £5,000 from an account held with RBS.
However it can also cover things such as a legacy of money paid from a specific life assurance policy;
or even shares drawn from a specific investment fund.
It doesn’t matter whether its money, shares etc, the key point is that the demonstrative legacy
specifies a source.
If the source does not contain enough money to satisfy the legacy, it may be possible for the legatee
to claim the difference from the general estate though the law is not completely settled. [See Reid’s
Trs v Dawson 1915 SC (HL) 47]
General legacy
The general legacy is a very simple form of legacy. It is a bequest of a type of generic property which
cannot be distinguished from other property of the same type.
The most common form of general legacy is money.
A legacy giving a beneficiary £1,000 would be a general legacy.
Similarly, a legacy of 1,000 gallons of grain or 50 bushels of barley or 25 barrels of beer would also be
a general legacy, but since we don’t live in a mediaeval-style agrarian barter economy you will
probably never see a general legacy other than for money.
When a general legacy makes a bequest of money, it is sometimes called a pecuniary legacy. Pecuniary
is simply an adjective meaning “relating to money”.
, Residual legacy
The subject of a residual legacy is the residue of the estate (i.e. whatever is left over after all debts,
legal rights and other legacies have been satisfied).
It will include any property not disposed of by the will and the subjects of any failed or void legacies.
In drawing up a will, it is good practice to ensure that it contains a residual legacy to avoid partial
intestacy. However most home-made wills lack one.
If the residual legacy fails for any reason, the residue will become intestate and will be distributed
according to the rules of intestacy (in other words, this will be a case of partial intestacy).
Universal legacy
A universal legacy is the simplest form of legacy, even simpler than a general legacy. It's just a legacy
of everything you own to one person. There'll be a will that's effectively a one line will.
It is a legacy of everything that a person owns and encompasses everything in the estate.
A universal legacy will usually say something like, “I leave everything I have to my wife.”
Where a universal legacy applies, there is no need for any kind of calculation other than a valuation of
the estate.
…and the precatory legacy
A precatory legacy is not actually a separate category of legacy.
The word “precatory” is an adjective relating to a wish or a request. A legacy is said to be precatory
when a testator attaches an indication of his hopes or wishes.
Example: “I leave my collection of antique Victorian trainsets to my wife in the hope that she will use
them as the basis for a museum of Victorian trainsets.”
the testator has left these trainsets to his wife. She will get them. And he indicates the hope that she
will use them as a basis for a Victorian trainset museum. The hope, the wish, is not binding,
This is not binding on the wife and does not create any specific requirements or conditions for her.
The legatee will receive the property and will be able to do whatever he or she wishes with it,
regardless of the testator’s hopes or wishes.
There are no magic words for a precatory legacy and generally the testator’s intention has to be
ascertained on a case-by-case basis.
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