Succession Lecture 4
Testate succession
“A testament is, in the Roman law, defined, A declaration of what a person wills to be done with his
estate after death.”
Erskine, An Institute of the Law of Scotland (1773) 3.9.5
A testament, or will, is a written document indicating what a person wishes to be done with their
property after death.
The person making a will is said “to test” and is known as the testator (if male) or testatrix (if female).
The terminology here is Latin and derived from the Latin verb testare meaning “to bear witness” or
“to testify”.
Many people use home-made wills by simply writing down what they want done, but drafting formal
wills is a key part of practice for most private law firms.
The Testament
The testament indicates the testator’s wishes for how his estate should be dealt with after death.
It consists of a number of legacies (bequests in English law) instructing the delivery of specific parts of
the estate to named beneficiaries (England) or legatees.
The delivery of property to the beneficiaries is overseen by the executor. There are executors
nominate (i.e. specifically nominated in the testament) and there are executors dative (i.e. appointed
by the court in intestacy cases, where there is no executor specified).
Executors and executries will be dealt with during the trusts part of the course.
The executor executes the testament. He or she will be responsible for paying off all debts, liquidating
assets (if necessary) and ensuring that the nominated individuals receive the inheritance that the
testator wanted them to have.
This is carried out in a very short space of time – often only a matter of a few months. The key point
is that you are guided by what the testament says at all times.
INTENTION TO TEST
What is required to create a testament?
A written will is the most common form of testamentary document, but it is not the only one.
Any written document can be a testamentary document if it meets the legal requirements (so, letters,
diary entries, etc).
A will might be a single document or even a single page, but it could also be several different
documents written and executed at different times.
To constitute a valid testament, three things are required to turn a piece of paper into a will:
, 1. Concluded testamentary intention;
2. Testamentary capacity;
3. Compliance with the legal formalities.
If those 3 requirements are met, any piece of paper can become a will. It can actually be multiple
pieces of paper. It could be one document. It could be multiple different documents. It could even be
different documents written at different times and in different places. But provided you meet these
three requirements, then the document or documents will constitute a testament, a will.
Concluded testamentary intent
The deceased’s estate will be disposed of in accordance with the testament. Therefore, we must be
sure that the testament accurately reflects the deceased’s intentions.
The testamentary writing must make it clear that the granter intended it to have testamentary effect.
“The decisive factor is whether or not it can be established that the testator meant the deed in
question to represent his or her concluded testamentary intention.”
- Hiram, The Scots Law of Succession (2007), para. 5.4
In other words, did the deceased intend for the document to be the final decision on the disposal of
his or her assets? The document must represent the testator’s final word on the matter of where the
assets are to go on his death.
A document indicating an intention to make a will at a future date or indicating the deceased’s general
feelings on what might happen will not meet the test.
A letter to a solicitor instructing him to draft a will cannot represent a concluded testamentary
intention (Munro v Coutts [1813] 1 Dow 437), because it looks to a future testament which will be
drafted by a lawyer, then presented to the testator to sign it, and is therefore provisional. The letter
itself is not a will.
How do we prove intent?
All juridical acts are based upon intention.
For example, in a contract of sale, the three steps are contract; conveyance; and an external act.
For corporeal moveables, the external act is delivery; while for heritage, the external act is registration
in the Land Register.
The external act proves the intention of the parties.
With a testament, there is no external act. There is no delivery or registration of the deed.
Therefore to prove the testator’s intent, we must infer from the four corners of the document itself,
which means you cannot look outside the document, you can only look at what is written within this
testamentary document, whether it really indicates the testator’s final wishes for the disposal of his
or her estate.
, Signature is a strong but not decisive indicator of intent.
Proving intent: Draper v Thomason
Draper v Thomason 1954 SC 136
A letter was sent to the testatrix’s sister some years before death:
“By the way, while I'm 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 he will do the right thing. Connie.”
This was held to indicate concluded testamentary intent, so it was held to be a valid will.
Although it was not a formal document, it was held that the testatrix intended this letter to indicate
her final wishes for the disposal of her estate. The court said this is enough because, although, it's not
a formal document, the testator intended this letter to indicate her final wishes for the disposal of her
estate. So, this was will.
Proving intent: Rhodes v Peterson
Rhodes v Peterson 1972 SLT 98
This concerned a letter written by a mother 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.”
This letter too was held to exhibit concluded testamentary intent and was therefore a valid will.
Proving intent: Jamieson’s Executors
Jamieson’s Exrs 1982 SC 1
This concerned a letter by Mrs Edith Jamieson to her solicitor:
“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”
This letter was held to have no concluded testamentary intent.
Why? Because the letter was about the creation of a future will. Therefore, the letter, on its own
terms, was provisional until the final formal will was produced by the solicitor. The court said that
when you sent a letter to a solicitor instructing them to create a will, the letter itself cannot contain
