Campbell (Milligan's Factor) v. Milligan and Others [1909] ScotLR 75 (24 November 1909)

Campbell (Milligan's Factor) v. Milligan and Others [1909] ScotLR 75 (24 November 1909)

The will was revoked by the subsequent birth of the child, as there were no special circumstances sufficient to rebut the presumption of revocation; mere lapse of time and preservation of the will were not enough.

Citation
[1909] ScotLR 75
Parties
First Party (judicial Factor/applicant): David Campbell (Milligan's Factor); Second Party (child/respondent): Bessie Milligan; Third Parties (beneficiaries/respondents): Mrs Eliza M'Myn or Milligan, Joseph Milligan (heir-at-law of William Milligan), Mrs Janet Milligan or Candlish
Jurisdiction
Scotland
Judgment Date
24 November 1909
Procedural Posture
Special Case (succession/trust) / Inner House, Second Division, Court of Session (final Judgment)
Outcome
The will was revoked by the birth of the child; the estate falls to be administered as intestate.
Legal Topics
Revocation of Will by Birth of Child, Presumption of Revocation, Testamentary Intention, Administration of Estate
Succession Trusts Wills Revocation of Will by Birth of Child Presumption of Revocation Testamentary Intention Administration of Estate

Case Brief

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Parties

David Campbell (Milligan's Factor)

First Party (judicial Factor/applicant)

Bessie Milligan

Second Party (child/respondent)

Mrs Eliza M'Myn or Milligan, Joseph Milligan (heir-at-law of William Milligan), Mrs Janet Milligan or Candlish

Third Parties (beneficiaries/respondents)

Procedural Posture

Special Case (succession/trust) / Inner House, Second Division, Court of Session (final Judgment)

Legal Issues

  1. 1 Whether the trust-disposition and settlement executed before the birth of a child was revoked by the subsequent birth of that child
  2. 2 Whether the estate should be administered as intestate or per the will

Ratio Decidendi

The will was revoked by the subsequent birth of the child, as there were no special circumstances sufficient to rebut the presumption of revocation; mere lapse of time and preservation of the will were not enough.

Court Disposition

The will was revoked by the birth of the child; the estate falls to be administered as intestate.

Orders

  • First question (validity of will and duty to administer per will) answered in the negative.
  • Second question (duty to divide as intestate estate) answered in the affirmative.