Watson and Others (Macgillivray's Trustees) v. Maxwell (Macgillivray's Curator) and Others [1911] ScotLR 887 (01 July 1911)

Watson and Others (Macgillivray's Trustees) v. Maxwell (Macgillivray's Curator) and Others [1911] ScotLR 887 (01 July 1911)

The mutual settlement was an invalid exercise of the power of appointment because it appointed part of the estate to persons (Duncan's children) who were strangers to the power. Subsequent consent by the curator bonis could not cure this invalidity. The contractual nature of the mutual settlement did not prevent Mrs MacGillivray from making a new, valid appointment by codicil after her husband's death, as the contract was spent once the original exercise was found invalid.

Citation
[1911] ScotLR 887
Parties
First Parties: Charles Heron Watson and others (Macgillivray's Trustees); Second Parties: Charles Brodie Boog Watson and others (Trustees of Rev. Charles Watson); Third Party: Hamilton Maxwell, W.S., curator bonis to Duncan MacGillivray; Fourth Party: Charles Watson MacGillivray; Fifth Parties: Three children of Charles Watson MacGillivray
Jurisdiction
Scotland
Judgment Date
01 July 1911
Procedural Posture
Special Case (court of Session, Inner House, Second Division) / Judgment on Questions of Law Regarding Exercise of Power of Appointment
Outcome
The Court held the mutual settlement was an invalid exercise of the power of appointment; the codicil of 1902 was a valid exercise; questions answered accordingly.
Legal Topics
Power of Appointment, Mutual Settlement, Revocability of Wills, Consent of Beneficiaries, Validity of Testamentary Dispositions
Succession Trusts and Estates Power of Appointment Mutual Settlement Revocability of Wills Consent of Beneficiaries Validity of Testamentary Dispositions

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Parties

Charles Heron Watson and others (Macgillivray's Trustees)

First Parties

Charles Brodie Boog Watson and others (Trustees of Rev. Charles Watson)

Second Parties

Hamilton Maxwell, W.S., curator bonis to Duncan MacGillivray

Third Party

Charles Watson MacGillivray

Fourth Party

Three children of Charles Watson MacGillivray

Fifth Parties

Procedural Posture

Special Case (court of Session, Inner House, Second Division) / Judgment on Questions of Law Regarding Exercise of Power of Appointment

Legal Issues

  1. 1 Whether the appointment of estate by Mrs MacGillivray in the mutual settlement was valid or invalid as an exercise of the power of appointment under her father's will
  2. 2 Whether subsequent consent by a beneficiary or curator can cure an invalid appointment introducing strangers to the power
  3. 3 Whether the contractual nature of the mutual settlement precluded Mrs MacGillivray from making a subsequent valid appointment by codicil after her husband's death

Ratio Decidendi

The mutual settlement was an invalid exercise of the power of appointment because it appointed part of the estate to persons (Duncan's children) who were strangers to the power. Subsequent consent by the curator bonis could not cure this invalidity. The contractual nature of the mutual settlement did not prevent Mrs MacGillivray from making a new, valid appointment by codicil after her husband's death, as the contract was spent once the original exercise was found invalid.

Court Disposition

The Court held the mutual settlement was an invalid exercise of the power of appointment; the codicil of 1902 was a valid exercise; questions answered accordingly.

Orders

  • Head (c) of the first question (mutual settlement wholly invalid) answered in the affirmative; heads (a) and (b) in the negative.
  • Second question found unnecessary to answer.