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 institutes instead of the persons whom he had instituted by his original settlement, in other words whether it is necessary to take into account a codicil which does not alter or affect the relevant provisions in the original trust disposition and settlement. All that the testator did by his codicil was to vary the administrative provisions of the settlement by appointing new trustees and executors, as all but one of the persons named in the settlement had died. The codicil ended with the words ‘and with these alterations I confirm my said trust disposition and settlement.’
Held: The answer depended on which date was to be taken as the critical date – the date of the trust disposition and settlement which he executed in 1936, or the date of the codicil which he made in 1946. Rejecting the argument that the effect of the quoted words was that 1946 was the crucial date for the purposes of the conditio. It was a highly technical and unrealistic argument, as the effect of the codicil was that the original beneficial provisions remained intact. It was a question of the intention of the testator. As the testamentary provisions were not innovated upon in any way by the codicil but referred to in it only in order to confirm them, the testator showed no intention of telling his trustees that they were to treat his testamentary provisions as if they were made for the first time in 1946.
Judges:
Lord Patrick, Lord Justice-Clerk Thomson
Citations:
1958 SC 125
Jurisdiction:
Scotland
Cited by:
Applied – 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 . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 06 December 2022; Ref: scu.187510
