Lauder v Briggs & Ors [1999] ScotCS 63 (26 February 1999)

Lauder v Briggs & Ors [1999] ScotCS 63 (26 February 1999)

The court held that, at first instance, the established presumption in Scots law is that a will missing from the testator's possession at death is presumed to have been destroyed with intent to revoke, but that the pursuer had averred sufficient circumstances (casus amissionis) to allow the matter to proceed to proof.

Citation
[1999] ScotCS 63
Parties
Pursuer: Rita Henderson Lauder; Defenders: Ian Briggs and Others
Jurisdiction
Scotland
Judgment Date
26 February 1999
Procedural Posture
Civil / Debate on Legal Issues Prior to Proof
Outcome
Proof before answer allowed; case to proceed to proof on averments.
Legal Topics
Presumption of Revocation of Wills, Proof of Tenor of Lost Will, Testamentary Capacity, Burden of Proof in Succession Cases
Succession Law Evidence Presumption of Revocation of Wills Proof of Tenor of Lost Will Testamentary Capacity Burden of Proof in Succession Cases

Case Brief

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Parties

Rita Henderson Lauder

Pursuer

Ian Briggs and Others

Defenders

Procedural Posture

Civil / Debate on Legal Issues Prior to Proof

Legal Issues

  1. 1 Whether Scots law presumes that a missing will last known to be in the testator's possession was destroyed animo revocandi (with intent to revoke)
  2. 2 Whether sufficient averments of casus amissionis (circumstances of loss) exist to allow proof of the will's tenor

Ratio Decidendi

The court held that, at first instance, the established presumption in Scots law is that a will missing from the testator's possession at death is presumed to have been destroyed with intent to revoke, but that the pursuer had averred sufficient circumstances (casus amissionis) to allow the matter to proceed to proof.

Court Disposition

Proof before answer allowed; case to proceed to proof on averments.

Orders

  • Parties allowed a proof before answer of their respective averments.