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47 Cards in this Set
- Front
- Back
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In what cases will Scots Law refuse to give effect to provisions of a will? |
1) Immoral, illegal, impossible 2) Where the legacy has no beneficial interest 3) Contrary to public policy |
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What is the most common ground for refusal? And what kind of thing does it include? |
Immorallity. Usually something along the line of "only pay out if X is not living with Y at the time of my death". It is the condition that is immoral, and not the behaviour of the beneficiary |
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McCaig’sTrs. V Univ. of Glasgow 1907 |
Wanted to put to build statues of him and family, and towers. Against public policy. Had 1 tower buit |
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McCaig’sTrs V Kirk Session of United Free Church of Lismore 1915 |
Wanted 11 bronze statues erected at a cost of no less than £1000. Against public policy |
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What is a life rent? |
Someone gets property in a will but states in the will that someone else will live there. |
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What documents are will substitutes? |
1) Special Destinations 2) Nominations 3) Donations mortis causa 4) Life Policy |
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What is a special destination? |
Usually heritable. When the pro indiviso share of the predeceasing owner passes on death to thesurvivor. Does not form part of estate |
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Can a special destination be revoked? |
If there is a contractual element, no |
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What if someone paid completely for a property but it was under two or more names with a special destination? |
Then the destination may berevoked under the terms of a testamentary disposition by the person who paidthe purchase price. Person who paid nothing not free to evacuate S.D. |
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What is a nomination? |
When a small sum of money (up to £5000) is arranged to be paid on death to beneficiary from friendly societies, trade unions and formerly by the Trustee Savings Bank, National Savings Bank and N.S. Certificates |
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What is a donation mortis causa? |
A revokable gift made in contemplation of death. Irrevocable on death. |
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What is the difference between a donation mortis causa and a testamentary bequest? |
1) T.B only takes effect after death. Beneficiaries usually get a D.M.C. right away 2) D.M.C. does not require to beconstituted in writing unless transfer of ownership of the property in questionrequires writing e.g heritable property |
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What are the 3 things that make a Donation mortis causa? |
1) Made in contemplation of death (but death does not need to be imminent) 2) Property must be given to the beneficiary 3) Evidence of the owners intention to make gift as legal presumption is against gifts |
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What is a life policy? |
Life insurance payable on death to either beneficiary (special destination) or estate. Alife assurance policy in trust on the life of a spouse for the benefit of theother spouse or their children does not form part of a deceased’s estate |
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What is a special legacy? |
A bequest of a specified subject or subjects which maybe corporeal or incorporeal. Subject to ademption |
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What is ademption? |
If it's not part of the estate on the testators death the legatee is owed nothing |
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What is a demonstrative legacy? |
the testator indicates the source or fund from whichthe legacy is to be paid in regards to a particular item (e.g. piece of furniture from particular house). Also subject to ademption |
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What is a general legacy? |
Usually fixed amount of money or value of goods with no special qualities |
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What is a universal legacy? |
Bequest of all the testator’s estate heritable andmoveable |
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What is a residuary legacy? |
The remainder of the estate after all debts and other legacies have been paid, including property not specifically disposed of and legacies that have failed
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Why should there always be a clause for residual legacies in a will? |
Otherwise it will fall into intestacy |
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What is abatement? |
the reduction of legacies where the bequests turn outto exceed the assets of the deceased’s estate |
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What are the rules of abatement? |
1) Residual legacies abate first 2) General legacies abate equally and proportionately 3) Demonstrative legacies don't abate until that fund is gone 4) Special legacies only abate when there are insufficient funds after debts to meet them |
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What happens if there are two legacies to the same person for the same amount? |
Assumed to be Substitutional |
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What happens if there are two legacies to the same person for different amounts? |
Assumed to be cumulative |
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What is a destination over? |
When the original beneficiary pre-deceases the testator, then it passes to an alternative beneficiary ("whom failing") |
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What are institute, conditional institute and substitute beneficiaries? |
Institute: Original Conditional institute: Rights fall away if Inst. inherits Substitute: If Inst. dies before Sub., the destination over may still apply and they will get legacy |
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What is accretion? |
legal principle where if there is more than one jointowner of property, the share of a predeceasing owner may in certaincircumstances pass to the survivors by way of an implied destination over to the survivors |
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What are words of severance? |
"equally among them" or "in equal shares" Used to avoid accretion |
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What is a conditional legacy? |
Legacies with a condition that must be satisfied before payment or the legacy will be forfeit (excluding impossibility, illegality etc) |
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What is a potestative condition? |
one which is within the power of the beneficiary toperform |
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What is the general rule when dealing with potestative conditions? |
They will be held to be fulfilled if the beneficiary has done everything within their power to fulfil it |
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What is a casual condition? |
Cannot be performed by the beneficiary |
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What are the two types of casual conditions? |
1) suspensive: usually where the beneficiary cannot inherit until hereaches a certain age 2) resolutive: extraneous and has nothing to do with the beneficiary |
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What is repugnancy? |
When there's a restriction to a heritable legacy. Ex: a legacy is made to a person who is of full age (18+) and the legacy has vested in the beneficiary but the testator leaves directions thattrustees are to administer the fund until the beneficiary reaches some otherage e.g 25 |
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What is a trust? |
an interest created by thetransfer of property to a trustee, in order that he may carry out the truster'sdirections respecting its management and disposal |
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What is the truster? |
Person who creates the trust |
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What is the trustee? |
the person appointed to administer the property not forhis own benefit but for the benefit of the beneficiary |
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What is the beneficiary? |
The person who benefits |
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What is patrimony? |
collection of rights andliabilities |
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What are 4 functions of a trust? |
1) protect an incompetent orvulnerable person 2) holding shares (prevent one person controlling/hostile takeovers) 3) collective investmentpurposes 4) hold the property of anunincorporated association 5) |
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What are inter vivos and mortis causa trusts? |
inter vivos: take effect in trusters lifetime mortis causa: after their death |
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What are public and private trusts? |
Public: for the benefit of thepublic in general, or of a specified class of the public in general Private: benefits a specifiedindividual or a specified group of individuals |
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What are charitable trusts? |
grantedcharitable status if the purposes of thetrust fall within one or more of the definitions contained in the act e.g preventionor relief of poverty, advancement of education |
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What is an SCIO? |
Scottish CharitableIncorporated Organisation (SCIO) is a new legal form, which allows Scottish charities to incorporatewithout having to become companies |
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What must an SCIO have? |
its principal office in Scotlandand at least two members |
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What are Discretionary Trusts? |
When a truster allows the trustees a certain amount of discretion in the exercise of the powersconferred on them |
