‘The doctrine of approbate and reprobate in Scotland and the doctrine of election in England are the very same thing under different names. They depend upon a principle which in its comprehensiveness and simplicity was put by Lord Eldon in the House of Lords in the Scotch case of Ker v. Wauchope thus-‘It is equally settled in the law of Scotland and of England that no person can accept and reject the same instrument.”
A testatrix conveyed to trustees ‘all and sundry the whole estate and effects . . which shall belong to me at the time of my decease or over which I may have power of disposal by will or otherwise,’ and declared that she was acting ‘in exercise of all powers of disposal, apportionment, or otherwise competent’ under the trust-disposition and settlement of her father. She destined the trust estate in certain shares to her children in liferent and their children in fee. The funds coming from her father’s estate belonged in fee under his settlement to her children, although subject to her liferent and her power of appointment, and her exercise of the power of appointment by giving the children merely a liferent and their children the fee was held to be a bad exercise.
Held (rev. judgment of the First Division) that although the funds coming from her father’s estate were separable from the testatrix’ own funds, yet her children could not claim the right conferred upon them in the former under his settlement and at the same time take a benefit in the latter under her settlement, but were put to their election; and this obligation to elect was not affected by the interest given in the testatrix’ estate being declared alimentary, Scots law differing herein from English law, nor by there being no declaration that such interest was in lieu of any claim on the fund coming from the father’s estate, while there was such a declaration as to legitim and the marriage-contract funds.
Judges:
Lord Chancellor (Loreburn), Earl of Halsbury, Lord Macnaghten, Lord Atkinson, Lord Shaw, and Lord Robson
Citations:
[1911] UKHL 401, 48 SLR 401
Links:
Jurisdiction:
England and Wales
Wills and Probate
Updated: 25 April 2022; Ref: scu.619190
