Earl of Balfour v Keeper of the Registers of Scotland and Others: HL 6 Nov 2002

The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the first codicil. The only alteration which it made to the provisions of the trust disposition and settlement was spent as soon as the Third Earl succeeded to the residue in place of the Second Earl, whose nomination as the person first entitled to succeed had been cancelled by it. The provisions of Purpose in the Seventh Place which conferred a right of liferent in succession to the heirs male of the body of the Second Earl as a class were not altered or innovated upon in any other way, but were referred to only to confirm them. The date of the deed by virtue of which the appellant became entitled to his interest in possession of the residue was the date of the trust disposition and not that of the first codicil.


Lord Bingham of Cornhill Lord Hoffmann Lord Hope of Craighead Lord Clyde Lord Rodger of Earlsferry


[2002] UKHL 42, 2002 SLT 1385, 2002 GWD 36-1216, 2003 SC (HL) 1, 2003 SCLR 125


House of Lords, Bailii


Entail Amendment (Scotland) Act 1848 47 48




Appeal fromThe Rt Hon Gerald Arthur James, Earl of Balfour, Viscount Traprain of Whittingehame for Declarator of Fee Simple Proprietorship SCS 11-Apr-2002
. .
CitedMuir’s Trustees v Williams HL 1943
The law against perpetuities in Scotland is entirely of statutory origin. . .
CitedErskine v Wright 1846
The provisions of the Act would be capable of being defeated if it had remained possible to tie up lands in perpetuity by the creation of a series of liferents. This would soon supersede all other methods of doing so if it were competent. . .
CitedMiddleton, Petitioner 1929
Section 47 applied to any trust deed dated after 1 August 1848. . .
CitedDavie v Davies’ Trustees OHCS 1900
A trust disposition which had confined the pursuer to a liferent for as long as the trustees exercised the discretion which they had been given to retain the capital was struck at by section 48 of the Act. . .
CitedMurray v Murray’s Tutor 1915
The date of a mortis causa trust disposition and settlement for the purposes of section 48 of the 1848 Act was the date of the truster’s death and not the date of its execution. . .
CitedG W H Riddell, Petitioner IHCS 1874
The date of the deed must be taken to be the date when the trust deed was made and executed, which is the literal meaning of the words used . .
CitedEarl of Moray, (Petitioner) HL 1950
The testamentary writings consisted of a trust disposition and five codicils. The petitioner was born after the date of the first codicil, but before the date of the fifth and final codicil. The argument was directed to the question whether the . .
CitedLord Binning, Petitioner 1984
. .
CitedMalcolm’s Trustees v Malcolm HL 1950
It may be necessary to choose between various documents in order to discover the deed by virtue of which a liferent which is in question was constituted. . .
CitedBlack v Watson 1841
Where a testator leaves more than one testamentary writing they are to be read together so far as possible as if they formed one deed. . .
AppliedMiller’s Trustees v Miller 1958
The issue was whether the rule of conditio si institutus sine liberis decesserit operated and, if so, whether two nephews who predeceased the date of a codicil which the testator made to his trust disposition and settlement were to be regarded as . .

Cited by:

Appealed toThe Rt Hon Gerald Arthur James, Earl of Balfour, Viscount Traprain of Whittingehame for Declarator of Fee Simple Proprietorship SCS 11-Apr-2002
. .
Lists of cited by and citing cases may be incomplete.


Updated: 06 June 2022; Ref: scu.177934