Class notes
Executory Law in Scotland
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notes from first year in Executory Law in Scotland. these notes will suit first year students and beginners.
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Wills If there is a will, its terms should be interpreted to reflect the testator’s intentions. Generally, the will
should be read as a whole and the contents interpreted to have their ordinary meaning.
Is there a will? All kinds of problems can arise here. There may be a recent will lodged with a solicitor
which the relatives know about
Or a will may be found among personal papers in the home but relatives claim this is old and another
more up to date will has been made.
Even if there is a will there still can be problems;
Perhaps an item was left to a particular person and it is no longer available, or
The beneficiary has predeceased the testator who hasn’t left instructions as to who else is to inherit it
(whom failing clause)
A similar issue relates to the naming of an executor or executors. If there is only one and he or she
predeceases the testator, then matters may become complicated.
Testator Succession – deceased left a will
Formalities for Validity of Wills
The Requirements of Writing (Scotland) Act 1995
Under the law of Scotland, no specific words are required for a will as long as it clearly expresses the
testator’s’ intention. it can be in ink, obviously, ink is the best as pencil can be altered easily
Wills can be typed, hand written or, can be a combination of print and handwriting.
Action challenging the validity of a will is called action of reduction
Provided the will complied with the following it will be held to be self-proving
The testator must sign at the foot of every page and at the end of the will.
There must be one witness who sees the testator sign or acknowledge his signature (before the
requirements of Writings (Scotland) act 1995, two witnesses were required.
The witness must sign at the end of the last page of the will;
The witness must fully designed ie full name, address, occupation.
The Requirements of Writing (Scotland) act 1995 applies to only documents executed on or after 1st
August 1995.
Ambiguity in the will?
If anything in a will could be interpreted in 2 ways
Then:
Other evidence outside the will, e.g. letters written by the testator, could be used to clarify the
testator’s intention.
Capacity to make a will
Age
there are differences in Scotland in the law of contract and the law of Succession.
The Age of Legal Capacity (Scotland) act 1991 gave unrestricted testamentary capacity to both males
and females at the age of 12 years. (England – the age of 18 unless on active military service or
seaman when the age is then 16)
Of Unsound Mind
A person who lacks the mental capacity to make a will.
However, anytime can make a will and it is up to someone challenging it to prove that the person is of
unsound mind.
The question is – did the person understand the nature and effect of his will when making it?
In that case a guardian may be appointed.
(a person appointed by the court to look after the affairs of someone who lacks the mental capacity to
do it themselves)
, Facility and Circumvention
This is a condition slightly less severe than insanity e.g. an old person may suffer a degree of mental
deterioration but does not amount insanity.
Someone may take advantage of such a person
There are 3 elements necessary for there to be facility and circumvention:
Facility – this is the weakened mental state
Circumvention – getting around the testator or manipulating him. This is akin to moral fraud;
Lesion – harm to his interests
Undue Influence
This is where someone has been influenced by another to leave them a legacy.
Someone attends a solicitor to make a will for him and there is a clause in the will leaving a legacy in
favour of a solicitor. This can be construed as undue influence.
The courts try to protect people from manipulation whether by banks, solicitors, building societies,
persons in a dominating position.
Error
This plays a major part of the law of contract.
If there is an error as to an essential part of the contract (e.g. identity of subject matter) then the
contract is null and void.
The position is more difficult in the law of succession.
In theory a will can be set aside for essential error. This would be on the grounds that the testator did
not know of the nature, effect or contents of the will.
Proof is however difficult. Error is not enough. There must also be fraud or circumvention.
Effect of incapacity on a will
If the will lacks consent then it can be reduced (set aside). This will require an Action of Reduction in
the Court of Session. If the action is successful then the wills falls. Normally the wills fall completely
and totally.
Notarial Execution
This is where the testator cannot sign I.e., he cannot write or is blind. The testator states this and
authorises the notary to sign. The notary can be a notary public or a justice of the peace.
Testing clause
This completes the document. IN WITNESS WHEREOF and details the testator, where and when the
deed was signed and the witness’s name. Address and occupation.
See page 9 of the handout
Is there protection against disinheritance?
Legal rights
Even if there is a will detailing how the estate is to be distributed in accordance with the testator’s
instructions.
A will cannot completely exclude
The surviving spouse, civil partner or children from inheriting.
If the spouse and/or children are not satisfied with the terms of the will they can claim Legal Rights
However, that legal rights can be claimed against moveable estate only (I.e. money, shares, cars,
furniture and jewellery)
THUS, NO such claim can be made against a house or a piece of land etc.
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