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145 Cards in this Set
- Front
- Back
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What is a liferent? |
It is the right to use and enjoy a subject during life, without destroying the substance. It is a subordinate real right. |
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What are the characteristics of a proper liferent? |
- There are 2 parties: the liferenter and the fiar - There are 2 real rights - The nature of the liferenter’s right is real(subordinate) - The nature of the fiar’s right is real(ownership) |
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What are the characteristics of an improper liferent? |
- There are 3 parties: the trustee(s), beneficial liferenter and beneficial fiar - There is 1 real right: the trustee(s) - The nature of the liferenter’s right is personal - - The nature of the fiar’s right is personal |
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How are liferents created? |
A liferent is created as a real right by a deed registered in the Land Register or Sasine Register (writing is required by s 1 (2)(b) of the RoW(S)A 1995). It can be created either by grant, where the owner confers a liferent on someone else or by reservation - where the owner transfers ownership to someone else but reserves to himself a liferent. |
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What sort of property is a liferent competent for? |
A liferent can exist over corporeal heritable and moveable property. |
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Who has possession with regards to the subject of the liferent? |
The liferenter (a.k.a. the fiar) has possession (natural or civil). |
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Who is responsible for the maintenance of the property subject to the liferent? |
The liferenter must keep the property is a reasonable condition. |
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What happens if the liferenter dies? |
The liferent ends, and so the fiar's ownership ceases to be encumbered. |
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What happens to the liferent if the fiar dies? |
There are no special rules: the property is like any other property subject to a subordinate real right. E.g. the owner could bequeath the property. Since the liferent is a real right, the liferenter is unaffected. |
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What happens if the liferenter becomes insolvent or sequestrated? |
With regards to insolvency, the creditors can attach the liferent. Likewise, if the liferenter is sequestrated the liferent becomes an asset in the sequestration but it cannot be realised by sale OR the trustee in sequestration could do a deal with the fiar whereby the liferent would be renounced in exchange for payment. |
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What happens if the fiar becomes insolvent or sequestrated? |
There are no special rules: the property is like any other property subject to a subordinate real right. The fiar's creditors can attach the property, while, if the fiar is sequestrated the fee will simply become one of the assets in the sequestration. None of this affects the liferenter as they have a real right. |
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How is a liferent terminated? |
Liferent ends with the liferenter's death. The liferenter can also 'renounce' the liferenter which may be for payment or not. |
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When someone dies, can they leave anything in their estate to someone that is not a relative? |
Yes if they die testate but if someone dies intestate, their estate needs tobe divided up by the rules i.e. their estate stays withinthe family. |
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Who has legal rights that cannot be excluded by the testament of the deceased?
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The spouse, children and sometimes grandchildren of the deceased.
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What is the governing statute for the registration of deaths? |
The Registration of Births, Marriages and Deaths (Scotland) Act 1965. |
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If a formal inquiry before the sheriff is conducted by the procurator fiscal, in order to determine the circumstances of the death, by what legislation is it regulated? |
The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act. |
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What happens if a person is thought to have died but there is no body e.g. in a shipwreck or plane crash etc? |
A declarator of death can be obtained; the court declares the person to have died at the time of the disappearance. |
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What happens if a person merely disappears? |
Here there is normally no case for saying that person died on the day of disappearance. But after 7 years, the court can deem that person to have died at the end of the 7-year period. This opens the way to rights of succession to that person's estate. |
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What are the three ways in which one person may inherit from another? |
(1) By legacy (a.k.a. bequest) - only by testate (2) By intestate succession (3) By legal rights |
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What is 'common calamity'? |
It is the situation where two or more people die in the same incident, e.g. a road accident or a house fire. |
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What happens in a 'common calamity' situation involving two spouses where it can be proven that one person died a minute after the other? |
If it can be shown, on a balance of probabilities, that one died after the other, then that person survived the other and so inherited. |
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What happens in a 'common calamity' situation, where both people died at exactly the same moment? |
s31 of the S(S)A 1964 sets out certain rules. If parties are spouses/civil partners then neither survives the other. Otherwise, the younger person survives the elder. But there is an exception to the rule if: (a) the elder has left a legacy to the younger; and (b) there is a destination-over to somebody else; and (c) the younger is intestate Then the rule is that the elder survives the younger. |
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When do the s 31 of the S(S)A 1964 apply? |
(a) in the case where the evidence shows that the people died at the exact same moment but also (b) in the case where the evidence is simply unclear. |
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Do children out of wedlock have legal rights to the estate of the deceased? |
Yes, children out of wedlock who can show that the deceased was their genetic parent have the same rights as any child. |
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How is an adopted child treated for succession purposes? |
An adopted child is treated as a child of their adoptive parent(s) and not as a child of their actual parents. The only way in which an adopted child can inherit from his biological parents is by way of legacy. |
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How are stepchildren treated for succession purposes? |
A stepchild has no succession rights in the estate of the deceased. The only way in which a stepchild can inherit from his biological parents is by way of legacy. |
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How are posthumous treated for succession purposes? |
A baby born after its father's death has the same succession rights as if it had already been born at the time of the death. |
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How are cohabitants treated for succession purposes? |
In intestate cases, the court may, on a discretionary basis, make a cohabitant award. In a testate case a cohabitant may receive a legacy, but otherwise has no claim. |
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How are juristic persons treated for succession purposes? |
Juristic persons and trusts are obviously not family members and so have no inheritance rights, but it is competent/common to leave a legacy to them e.g. leaving money to charity. |
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What is an 'unworthy heir'? |
Someone barred from inheriting because he or she unlawfully killed the deceased; all their rights are lost. The law was modified by the Forfeiture Act 1982 which provides that the court has a discretionary power to 'modify' the common law rule if the killer is convicted of culpable homicide rather than murder. 'Modify' = court cannot waive the rule completely. |
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What is the 'estate'?
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It is a person's patrimony upon death - the collection of assets and liabilities of the deceased that must be 'wound up' by the executor.
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What is 'winding up'? |
The executor pays the debts, pays any tax due and distributes that balance (in kind or money) to the beneficiaries. |
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What is the principle of active transmissibility? |
All the deceased's assets form part of the estate. |
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What is the principle of passive admissibility? |
The liabilities of the deceased continue as liabilities of the estate; death does not dissolve obligations. |
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If A borrows £50 from B but B dies before getting the money back from A, what happens to that payment? |
The right to repayment forms part of the estate; A must pay B's executor. |
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If A borrows £50 from B but A dies before paying the money back to B, what happens to the payment? |
The debt remains payable. It is for the executor to discharge the obligations. This is done by means of assets; the executor pays the debts by realising the assets. |
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What happens if the deceased died with more debts than assets? |
The deceased person died insolvent - the beneficiaries get nothing. |
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What happens if the value of the deceased's assets is insufficient to meet the claims of the creditors? |
There is nothing the creditors can do about it. |
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What is the statutory basis on the transmission of deceased's rights to executor? |
s 2 of the The Damages (Scotland) Act 2011 |
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What are the three ways that it may make a difference if an asset is heritable or moveable? |
(1) Legal rights are calculated on the net value of the moveable estate. (2) Whether an asset is heritable or moveable can make a difference where cross-border issues are concerned. (3) It makes a difference to which part of the estate pays off debts. |
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What assets are exempt from the possibility of being realised to pay creditors? |
None. |
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How is a debt paid off if it is secured by a particular asset? |
The asset that is the security is regarded as the fund out of which that debt is to be paid (the beneficiary would get the proceeds). |
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What happens if a debt is secured over two assets? |
Both assets are burdened in the ratio of their values. |
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What happens to debts when calculating legal rights? |
In calculating legal rights, all the debt, except those secured against heritable property, are notionally deducted from the moveable part of the estate. Legal rights are calculated on the basis of the moveable estate minus the 'moveable debts' and the 'moveable debts' are generally, all debts except those secured over heritable property. However, note that legal rights are not necessarily paid out of the moveable estate. |
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How are debts paid in a testate case? |
Debts reduce the value of the residuary legacy. The debts must be paid out of the residue. The only exception to that is if the debts, or part of them, are secured over an asset e.g. a house. |
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What happens in a testate case if the debts are so large or the residue so small? |
Then other legacies (over and above the legacy of residue) will be affected. The other legacies would be 'abdated' i.e. scaled down so as to make it possible to pay the debts. |
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What happens if A owns land. On Monday, A contracts to sell it to B. On Tuesday, B dies. B's estate has (a) a contractual right to acquire the land; and (b) an obligation to pay the price. |
B's contractual right to the land is itself a heritable right and will be treated as such for purposes of B's estate. However, since B has died the land is probably now not wanted, so B's executor may try to negotiate with A to be released from the contract. |
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What are relict's rights?
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Jus relictae to widow or jus relicti to widower. If issue (share that goes to children), one-third of moveable value. If no issue, then half)
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What is legitim? |
Legitima portio/bairns' part. Legitim 'fund' (for children). If relict (share that goes to spouse), one-third of moveable value. If no relict, then half. |
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What is the dead's part? |
That part of the estate which the deceased was able to dispose of by testament. So the dead's part is the net estate minus the legal rights claims, if any. |
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When can legal rights apply? |
Legal rights operate in both testate and intestate succession. They protect against disinheritance, and so really make sense only in testate succession. |
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In what sense are legal rights claimants treated as creditors? |
(a) as between them and actual creditors, they are treated as beneficiaries, so that their claims are postponed to the claims of the creditors but (b) as between them and other beneficiaries they are treated as creditors, in that they have claims for money that must be met before other beneficiaries can receive anything. |
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What is the order of priority in testate succession? |
(i) debts (including taxes) (ii) legal rights; and (iii) legacies. |
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What is the order of priority in intestate succession (more complicated)? |
(i) debts (including taxes); (ii) prior rights; (iii) relict's rights (iv) cohabitant's rights; (v) legitim; and (vi) free estate. |
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What are the two main reasons why legal rights would be declined (renounced)? |
(1) altruism: e.g. a spouse leaving everything to their widow(er) and their children might not want to claim from their parent. (2) the doctrine of approbate and reprobate: the rule that some cannot take both legal rights and a legacy. |
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Does the amount a child would receive in legitim change if their sibling(s) does/do not claim their legal rights? |
No, they receive the same sum that they would have received if their sibling(s) had claimed legal rights. E.g. if there was two children, the one who claims would still get half of a third of the moveables. |
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Does the amount a child would receive in legitim change if their sibling(s) renounce their legal rights before the death? |
Yes, in that case the renunciation would benefit those persons who do claim legal rights. |
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If someone has legal rights and is also a legatee, what can they claim?
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The law is that they have to choose, but they cannot take both i.e. approbate (to accept the legacy and approbate the testament) and reprobate (to take legal rights instead is to reprobate the testament).
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Where is the legal basis for the rule of approbate and reprobate? |
It is a common law rule but s 13 of S(S)A 1964 puts the rule into statutory form (without exceptions). |
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Does claiming legal rights mean one forfeits rights other than any legacy? |
No, claiming legal rights does not mean the loss of other rights (other than the legacy). The claimant can still claim from legal rights in relation to the intestate estate. Moreover, claiming legal rights does not prevent someone from accepting property under a special destination. |
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If a child has predeceased leaving children (i.e. grandchildren of the de cujus), what happens to that child's legal rights? |
The children of the predeceased step into their parent's shoes; they are said to represent their parent (s 11 of the S(S)A 1964). |
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What is the difference between per stirpes and per capita division? |
Per stirpes = stock/family Per capita - per head The rule is this: if all the claimants are of equal propinquity (nearness of kinship) to the deceased then the division is per capita, but if unequal propinquity then the division is per stirpes. |
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Is there representation for relict's rights (legal rights of the spouse) as well as legitim (legal rights of the children)? |
No, there is no representation in relict's rights. |
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When does representation apply? |
Representation is possible for (i) legitim and (ii) intestate succession rights. It is not possible for (i) legacies or (ii) prior rights or (iii) relict's rights or (iv) cohabitant's claim. But for legacies, something similar to representation sometimes applies: conditio si institutus sine liberis decesserit. |
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What is a 'collatable advance'? |
It is a sort of pre-payment of legitim which must be brought into account to achieve fairness as between the various legitim claimants. This is the doctrine of collatio iner liberos. |
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What counts a 'collatable advance'? |
Only gifts of moveables count and according to Stair, only money gifts count. Alimentary is not included in collation. |
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If someone refuses legitim, do they still have to collate? |
No, if someone refuses legitim then they do not collate. E.g. if someone takes a legacy instead of legitim then they do not need to collate. |
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Can legal rights be circumvented? |
Legal rights cannot be avoided but sometimes their extent can be minimised by forward planning. (i) by minimising the value of the moveable estate e.g. transferring assets into a trust, with the trustees holding for the owner in liferent and for the person who you want to be given more money in fee (ii) by selling investments and using the money to buy an annuity (iii) by maximising the heritable estate (iv) by 'artificial intestacy'. |
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What is the age of legal capacity to make a will? |
Under the Age of Legal Capacity (S) Act 1991 s 2(2), the age of 12. |
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How is a will deemed valid? |
Under s 1(2)(c) of the Requirements of Writing (Scotland) Act 1995, the will needs to be subscribed. |
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How is a will deemed probative? |
There must be a witness and the granter must sign each sheet - s 3(2) of the Requirements of Writing (Scotland) Act 1995. |
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How can an improbative testament be established as validly executed? |
There is a special affidavit procedure for doing so under s 4 of the Requirements of Writing (Scotland) Act 1995 - you have to get a certificate from someone who knowsthe deceased’s signature and they have to swear that it is their signature onthe will. |
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Draper v Thomason (1954) |
Court are lenient when it comes to subscription of homemade wills thus 'connie' at the end of a letter was held to exhibit concluded testamentary effect, so that the letter was a valid testament. |
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Rhodes v Peterson (1972) |
Court are lenient when it comes to subscription of homemade wills thus 'mum' at the end of a letter was held to exhibit concluded testamentary intent, so that the letter was a valid testament. |
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Davidson v Convoy (2003) |
The concept of 'adoption' of one doc of another is a general one in the law of execution of deeds. E.g. in this case, the deceased left an envelope with 'My will: Agnes Bess Sim' on it. Inside there was a sheet of paper of a testamentary nature but it was unsigned. Held that the envelope was a validly executed testament which adopted the sheet of paper. |
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When is revocation of a testament competent? |
A testament does not become live until the granter ceases to be so, so that alteration or complete revocation is always competent. Unless,the person whose will it is has contracted to not change their will. This leadsto great difficulties. |
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What happens if a testament is lost? |
If it is known what the will said from a scan or photocopy an action can be raised to prove the tenure of a lost document, bring evidence of the doc and what you thinkmight have happened to the document. The judgement here stands instead of the lostdocument. |
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If the granter writes to their lawyer saying what they wanted their will to say then before anything else can happen that person dies. Will that letter to the lawyer itself count as a testament? |
An email cannot work (execution point) and usuallythis type of letter doesn’t count either but occasionally they do (if they saythat they intend it to be their will then it is fine). The courts look at it asif you send a letter to your lawyer, you’re expecting them to type it up (i.e. there is a further step) where as if you send a letter to a relative/friend youknow there are no further steps. |
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Clyde v Clyde 1958 SC 343 |
Ifa testament is known to exist but cannot be found, you have to get over thefollowing; there is a presumption that they destroyed it intentionally with theintention of revoking it. |
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What happens if the granter makes a will and then makes a new one but does not destroy the first one and it does not have a clause of revocation (more likely in home-made wills)? |
The rule is that thelater trumps the earlier. This may produce a simple result but if thesecond will does not deal with the whole of the estate then the first will still counts for the parts ofthe estate that the second will does not deal with. |
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If suspicion surrounds the making of a testament. Either void or voidable. Void – forgery, no capacity etc. Voidable – facility, circumvention or undue influence. |
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Do solicitors have a duty of care to potential legatees? |
If somebody gets a lawyer todraw up a will for them and (1) it is done badly; it is defective – if thatperson is still alive then it can be changed. If they have died, can the personwho would have benefitted take action against the lawyer? Thelawyer is liable if they let time pass before changing the will. |
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What are the alternatives to a testament for ensuring that on X's death Y will have some asset? |
(1) Inter vivos gift of fee withreservation of liferent. (2) Trusts. (You have to watch your own position and realise you maywant to change things. A testament can be changed but trusts are moredifficult) (3) Donatio mortis causa (Succession (S) Bill 2015 would abolish doctrine BUT not current law.) (4) Special destinations. (common inpractice – a clause written into title of heritable property, what is to happenwhen that person dies. In a register it says what’s to happen to the propertywhen the owner dies. |
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Who can prepare a will? |
Anyone can prepare a will on behalf of someone else, there are will writing firms who offer this service BUT arenot lawyers. See s 32(3)(a) of the Solicitors (Scotland) Act 1980. |
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Lawson's Executor v Lawson 1958 |
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Crozier's Trustee v Underwood 1963 |
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What are special legacies? |
A legacy of a particular asset, or an identifiable set of assets, such as a house, or a car, or all the testator's books, or the testator's shares in a particular bank. A special legacy can be a share of an asset: thus it might leave half-share of a house to one person and the other half to another. |
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What is a general legacy? |
A legacy of a certain quantity of a type of thing. Most common sub-type of a general legacy is a pecuniary legacy = a general legacy of money. |
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What is a residuary legacy? |
A legacy of everything that remains. |
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What is a universal legacy? |
A legacy in where the testator leaves his/her entire estate in a single legacy, such as 'everything to X'. |
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What are conditions on legacies? |
Legacies may be conditional. If a condition is contrary to good morals it is void. |
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Fraser v Rose (1849) |
A legacy was left on condition that the legatee did not live with her mother. The condition was held to be pro non scripto, (as if not written) so the legatee took the legacy free of the condition. |
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What happens if the testator mentions a relationship or position, such as 'my daughter-in-law, Y. What if that relationship or position ceases to exist? |
The presumption is that it was not a condition of the legacy. |
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Couper v Valentine (1976) |
The testament gave legacy to 'my wife mrs Dorothy Couper'. Later the Coupers were divorced. A few months after the divorce, he died, without having changed the testament. Held that the legacy took effect. |
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What is a legacy to a 'class'? |
It's a set of people who are described but not identified, e.g. 'my sister Fiona's children'. Suppose that at the date of the testament Fiona had 4 children A, B, C & D. Later, D died. Then the testator died. Then Fiona had another child, E. Only A, B & C would receive the legacy as a class is normally to be ascertained at the date of the testator's death. |
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What is ademption? |
It sometimes happens that the object of a legacy no longer exists e.g. if someone leaves their house to someone in their testament (with their address), they then move house and die before changing their testament. In this case, the legacy would be void because it has been 'adeemed'. |
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How can a legacy be worded as to prevent ademption? |
The testator could write something along the lines of 'I bequeath my house at (address), or such house which I may own at my death as my principal residence'. |
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What is the test for ademption? |
Ademption is a question of fact and not intention. The test for ademption is simply whether the assset is still in the patrimony of the testator or not. If it is not then the legacy is adeemed. |
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What is abatement? |
It may be impossible to pay, or make over, all the legacies in full so they must be scaled down. |
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What is legatum rei alienae? |
It means the 'legacy of someone else's property'. A legacy of property that belonged to someone else at the time of the testament, as well as at the time of death. Neither the thing itself, nor the value can be claimed by the heir. |
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What happens if a legatee dies before the testator? |
They cannot take they legacy; the dead cannot inherit. |
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What is a 'destination-over'? |
It's a provision in a legacy saying that if the legatee predeceases then the legacy is to go to someone else. One form is a survivorship destination-over (survivorship clause). |
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What is an 'implied destination-over'? |
As well as an express destination-over, the law in two types of case implies a destination-over. (1) accretion' - The law presumes that in a joint legacy (e.g. '£20, 000 goes to X & Y') that the testator meant 'X & Y & the survivor'. However, this is only a presumption and can be rebutted by evidence of contrary intention. (2) the doctrine of conditio si institutus sine liberis decesserit - if the legacy is given to the testator's child, there is an implied destination-over to the children of that child. This only applies to relatives.
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What is 'vesting'? |
A succesion right is said to 'vest' when the beneficiary acquires a right to it. In almost all cases that is at the moment of the death of the de cujus. But occasionally vesting is postponed. Vesting is a subject that belongs to the law of trusts. |
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What are the three stages of intestate succession? |
(1) Prior rights (if relict) (2) Legal rights (relict's right, if relict and legitim, if issue) (3) Free estate. And if cohabitant then possible discretionary award under s 29 of Family Law (S) Act 2006. |
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What are the three elements of prior rights? |
(a) Dwelling-house (b) Plenishings (c) Financial provisions |
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What is the dwelling-house right? |
If the deceased had a 'relevant interest' (i.e. ownership or co-ownership) in a dwelling-house in which the relict was 'ordinarily resident' (s 8(4)) at the date of death then that 'interest' passes to the relict (a house owned as an investment and let out would not count). One deducts from the value of the deceased's share the amount secured over that share. |
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What is the plenishings right? |
The relict (if ordinarily resident) has a right (s 8(3)) to furniture and plenishings within the dwelling-house up to a prescribed value (currently £29, 000). If the value of the furniture and plenishings exceeds this amount then the relict gets to choose which he/she gets. However, the furniture and plenishings are usually co-owned so the value is double. |
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What is the financial provision? |
This is a right to money. The amount is £89, 000 (in absence of issue) otherwise it's £50, 000. |
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How are legal rights calculated? |
In calculating them, it is necessary to know how much moveable estate is left after prior rights have been satisfied, because legal rights are calculated on the value of the moveables. |
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How is the financial provision deducted from the estate? |
The financial provision must be deducted rateably from the heritable and moveable estate (s 9(3) of the S(S)A 1964). |
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What is the 'free estate'? |
(s 2 of the S(S)A 1964) It means anything left of an intestate after satisfaction of prior rights, legal rights and cohabitant's right. In some cases there may be no free estate.
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What are the rules about representation with regards to intestate succession? |
Substantially the same as for legitim. |
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What is ultimus haerus with regards to intestate succession? |
The Crown is the ultimus haeres (the last heir) so if nobody else can be traced, the crown takes. |
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What is 'artificial intestacy'? |
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What is partial intestacy? |
It happens when the testament fails to dispose of the whole estate. |
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Kerr Ptnr 1968 |
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Savage v Purches (2009) |
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What are the two species of destination? |
destination-over (in testament) and spexxial destination (in inter vivos conveyance). |
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Where is a destination-over found? |
In a testament, or trust, as part of a legacy or beneficial right. |
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Where is a special destination found? |
In a disposition, and enters the Land Register or the Sasine Register. |
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In a destination over, what is the primary legatee? |
The 'institute' |
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In a destination over, what is the secondary legatee? |
The 'conditional institute' or the 'substitute' |
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What happens if the institute dies intestate? |
The 'conditional institute' or the 'substitute' gets the property. The property does not form part of the institute's estate (so their spouse cannot claim it). |
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What happens if the institute dies testate? |
Usually the destination defeats the legacy. Occasionally the legacy can defeat the destination, the rules are: a destination is sometimes validly evacuated by a legacy by institute (two conditions must be met for this) and one can see if there os power to evacuate from the title (see Perrett's Trs v Perrett). |
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What are the two conditions that must both be satisfied for a destination to be validly evacuated by a legacy by the institute? |
(1) a power to evacuate must exist exist; and (2) the evacuating legacy must confirm the requirements of the law, currently contained in s 30 of the S(S)A 1964. |
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Perrett's Trs v Perrett |
If the destination is a survivorship destination, and if both parties contributed to the price, as is almost always the case, then there is no power of evacuation by either co-owner. Since most married and co-habiting homeowners are co-owners, and since most of them opt for a survivorship destination in the title, and since in practice, it will be seen that survivorship destinations are both common and usually non-evacuable. |
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What happens if the institute transfers the property while he/she was alive? |
The 'conditional institute' or the 'substitute' takes nothing. |
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What happens if the institute granted subordinate real rights while he/she was alive? |
Such rights are valid and the 'conditional institute' or the 'substitute' takes subject to them. |
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What is the difference between a disposition stating (1) 'to A and B' and (2) 'to A and B and the survivor'? |
In both cases A and B become co-owners but the effect is different. With (1) if A dies, half his/her share forms part of his/her estate, it is not certain that it will go to B. With (2) it is the equivalent of saying 'half to A who failing B and half to B whom failing to A'. Therefore, with (2) A's share will normally go to B even if he/she leaves it to someone else and vice versa. |
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What are the five ways in which a destination can be evacuated? |
1. predecease of substitute 2. Legacy by institute (subject to conditions) 3. renunciation by substitute 4. disposition by institute. 5. divorce |
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How does the property transfer from the institute to the 'conditional institute' or the 'substitute'? |
The method depends on whether it is a survivorship destination. In a survivorship special destination, the share of the institute passes to the substitute without any act of conveyance and without any entry in the Land Register or the Sasine Register. For other destinations, is is necesary to have a conveyance from the insititute's executor. |
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What happens if the institute dies insolvent? |
If title is held by A and B and the survivor then B dies insolvent, A can be required to pay the value of the half-share that he took from B. |
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Is common ownership of X and Y with a survivorship destination the same as joint property? |
There are differences: A joint owner, unlike an owner in common, cannot grant a disposition of his/her share and cannot raise an action of division and sale. Common ownership + a survivorship destination is also like a proper liferent. |
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What happens if X and Y share a bank account and X dies, what happens to the money?
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If it is an 'either and survivor' account then the bank pays out on the signature of either party and continues to do so if one dies. However, this is not a survivorship destination. The rule is that when X dies, Y can withdraw all the money but but not be able to keep it. She must pay his part of the money to his executor (a) if there was an agreement, that has effect (b) if there was no agreement, then the money is divided accordingly to which arty was the source (c) if neither (a) nor (b) can be established, the division is equal.
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What are the two sorts of executor?
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(1) an 'executor-nominate', who is appointed by the deceased in the testament. (2) an 'executor-dative', who is appointed by the sheriff. |
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What is decerniture? |
The order of the sheriff appointing someone as executor-dative. |
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What is the executor's role with regards to the inventory? |
The executor prepares the inventory. All heritable properties, investments and bank accounts will be separately listed but furnishings can normally be lumped together. Each item must be given an estimated value. The executor then petitions to the sheriff to be 'confirmed'. The inventory is submitted as part of the petition. |
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What is the confirmation of an inventory? |
It is a decree authorising the executor to administer the estate: the right of administration does not exist before the confirmation. |
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What is an eik? |
An executor who later discovers other assets must petition for an eik, whereby the sheriff authorises the executor to administer the additional assets. |
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Are executors trustees? |
Under common law and the Trusts (Scotland) Acts, trustees are defined to include executors. |
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What happens if an estate is insolvent? |
(Refer to the Bankruptcy (Scotland) Act 1985) There are two ways of handling an insolvent estate: (1) a creditor is appointed as executor-creditor (2) the estate is sequestrated, and a trustee in sequestration appointed. If an executor is confirmed in the ordinary way and later realises that the estate is insolvent he/she must have the estate sequestrated. |
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What is the six-month rule? |
The law sets up a period of six months. Once the six months are up, the executor is free to wind up the estate on the basis of the debts known at the time. If the executor distributes the estate within the six months, it is at his/her own risk of being personally liable for new debts that come up. The six month rule means that: (a) no creditor can insist on payment within the period; and (b) no beneficiary can force the executor to pay, or convey, within the period. |
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Which law governs how moveables devolve? |
IPL says that moveables devolve according to lex domicilii (according to Scots law). |
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Which law governs how immoveables devolve? |
IPL says that immoveables devolve according to lex situs (according to the law applicable in the jurisdiction where a legal action is brought). |
