The testatrix left the residue of her estate absolutely to her husband ‘whom failing should he predecease me or should we die simultaneously or be held to have died simultaneously to any child or children born or to be born to me and the said Andrew Hunter, equally between them if more than one: ‘with a substitutionary gift in favour of the issue of any child who predeceased her’. The will continued: ‘In the event of the said Andrew Hunter predeceasing me or of our simultaneous death as aforesaid and there being no surviving child (or issue) born to me and the said Andrew Hunter so as to succeed to my estate, in that event only I leave the whole residue of my estate absolutely to my sister [and stepson] equally . .’ The testatrix was murdered by her husband, Andrew Hunter. There were no children of the marriage. The testatrix’ sister argued in favour of an intestacy.
Held: The Court decided in favour of an intestacy. There was clear authority that the forfeiture rule in Scotland is based at least partly upon considerations of public policy: ‘We agree with counsel for the heirs on intestacy that such a rule of public policy should be carried no further than is necessary to achieve its object. In our opinion whilst considerations of public policy lead to the right of Andrew Hunter being forfeited, there is no consideration of public policy which would support the deceased’s estate being then distributed as if Andrew Hunter had died.’ The gift over in favour of the testatrix’ sister and stepson only came into play in the event of Andrew Hunter’s having predeceased her, and that there was no justification for seeking to extend it to a situation where Andrew Hunter had not predeceased her but had in fact survived her.
Judges:
Lord Ross LJC
Citations:
(1992) SLT 1141
Jurisdiction:
Scotland
Cited by:
Cited – In re Heather Elizabeth Jones Deceased, Jones v Midland Bank Trust Company Limited; Perry and Others CA 17-Apr-1997
The will gave the residue of the estate to the testatrix’s son, but if he predeceased her to her nephews. The son was convicted of her murder. The court had to decide whether the gift fell into residue, when the son requested the court to disapply . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 30 April 2022; Ref: scu.211377