Hay v Duthie's Trustees [1956] ScotCS CSIH_3 (13 July 1956)

Hay v Duthie's Trustees [1956] ScotCS CSIH_3 (13 July 1956)

Under section 15(2) of the Adoption Act, 1950, the term 'children' in a will does not include an adopted child unless the contrary intention appears from the language of the deed itself, construed according to ordinary rules. Extrinsic evidence of the testator's intention is inadmissible unless there is a true ambiguity. In this case, as there are legitimate children and nothing in the will to indicate a contrary intention, the adopted child is excluded from the benefit.

Citation
[1956] ScotCS CSIH_3
Parties
Pursuer (adopted Child): Hay; Defenders (trustees of Testator's Estate): Duthie's Trustees
Jurisdiction
Scotland
Judgment Date
13 July 1956
Procedural Posture
Civil (succession/trusts) / Appeal (reclaiming Motion) Before Inner House, Court of Session
Outcome
Action dismissed; reclaiming motion allowed; interlocutor of Lord Ordinary recalled; defenders' first plea in law sustained.
Legal Topics
Interpretation of Wills, Adoption and Succession Rights, Statutory Construction, Latent Ambiguity, Testamentary Intention
Succession Law Trusts and Estates Family Law Interpretation of Wills Adoption and Succession Rights Statutory Construction Latent Ambiguity Testamentary Intention

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Parties

Hay

Pursuer (adopted Child)

Duthie's Trustees

Defenders (trustees of Testator's Estate)

Procedural Posture

Civil (succession/trusts) / Appeal (reclaiming Motion) Before Inner House, Court of Session

Legal Issues

  1. 1 Does the term 'children' in a will include an adopted child under Scottish law and the Adoption Act, 1950?
  2. 2 Is extrinsic evidence of the testator's intention admissible to show a contrary intention under section 15(2) of the Adoption Act, 1950?

Ratio Decidendi

Under section 15(2) of the Adoption Act, 1950, the term 'children' in a will does not include an adopted child unless the contrary intention appears from the language of the deed itself, construed according to ordinary rules. Extrinsic evidence of the testator's intention is inadmissible unless there is a true ambiguity. In this case, as there are legitimate children and nothing in the will to indicate a contrary intention, the adopted child is excluded from the benefit.

Court Disposition

Action dismissed; reclaiming motion allowed; interlocutor of Lord Ordinary recalled; defenders' first plea in law sustained.

Orders

  • Proof before answer refused; no inquiry into extrinsic evidence of intention permitted.
  • Pursuer not entitled to share in residue as a 'child' under the will.