McLernan & Anor v McLernan Or Ash & Ors [2001] ScotCS 49 (6 March 2001)

McLernan & Anor v McLernan Or Ash & Ors [2001] ScotCS 49 (6 March 2001)

The court found that Mrs Sinclair executed a holograph will before her hospital admission and intended it to have testamentary effect. The will was lost while outwith her possession, and the house was broken into during her absence. The evidence did not support that Mrs Sinclair destroyed the will with intent to revoke. The presumption of revocation was rebutted by the circumstances, and the tenor of the lost will was proved.

Citation
[2001] ScotCS 49
Parties
Pursuer: Kieran Anthony McLernan and another; Defender: Mrs Ailish McLernan or Ash and others
Jurisdiction
Scotland
Judgment Date
06 March 2001
Procedural Posture
Civil Proof of Will (proving the Tenor) / Outer House, Court of Session Judgment
Outcome
Decree granted in terms of the first conclusion; the tenor of the holograph will is proved.
Legal Topics
Proving the Tenor of a Lost Will, Presumption of Revocation, Holograph Testamentary Writings, Intestacy
Succession Law Probate Proving the Tenor of a Lost Will Presumption of Revocation Holograph Testamentary Writings Intestacy

Case Brief

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Parties

Kieran Anthony McLernan and another

Pursuer

Mrs Ailish McLernan or Ash and others

Defender

Procedural Posture

Civil Proof of Will (proving the Tenor) / Outer House, Court of Session Judgment

Legal Issues

  1. 1 Whether Mrs Julia Elizabeth Glancy or Sinclair executed a holograph will before her death
  2. 2 Whether the absence of the will at death gives rise to a presumption of revocation
  3. 3 Whether the circumstances rebut the presumption of revocation

Ratio Decidendi

The court found that Mrs Sinclair executed a holograph will before her hospital admission and intended it to have testamentary effect. The will was lost while outwith her possession, and the house was broken into during her absence. The evidence did not support that Mrs Sinclair destroyed the will with intent to revoke. The presumption of revocation was rebutted by the circumstances, and the tenor of the lost will was proved.

Court Disposition

Decree granted in terms of the first conclusion; the tenor of the holograph will is proved.

Orders

  • The court finds and declares that Mrs Sinclair executed a holograph testamentary writing before her admission to hospital on 28 November 1994.
  • The tenor of the lost will is established as set out in the pursuers' reconstruction.