Nicolson v. Nicolson [1922] ScotLR 479 (11 July 1922)

Nicolson v. Nicolson [1922] ScotLR 479 (11 July 1922)

The holograph will of 31st July 1917 was revoked by the birth of the testator's second child, as there were no special circumstances to rebut the presumption of revocation. The prior trust-disposition and settlement of 13th February 1917, which was only impliedly revoked by the holograph will and provided for after-born children, became operative as the effectual disposition of the testator's estate.

Citation
[1922] ScotLR 479
Parties
First Party (widow, Individual): Mrs Nicolson; Second Party (tutor): Mrs Nicolson (as tutor of two pupil children); Third Party (trustees): Mrs Nicolson and others (trustees)
Jurisdiction
Scotland
Judgment Date
11 July 1922
Procedural Posture
Special Case (succession) / Inner House, Court of Session, Final Judgment
Outcome
The Court answered: (1) the holograph settlement of 31st July 1917 was revoked by the birth of the testator's second child; (2a) the trust-disposition and settlement of 13th February 1917 is operative as an effectual disposition of the testator's estate; (2b) the estate does not fall to intestacy.
Legal Topics
Revocation of Will by Birth of Child, Implied Revocation, Conditio Si Sine Liberis Decesserit, Effect of Prior Will, Intestacy
Succession Wills and Probate Revocation of Will by Birth of Child Implied Revocation Conditio Si Sine Liberis Decesserit Effect of Prior Will Intestacy

Case Brief

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Parties

Mrs Nicolson

First Party (widow, Individual)

Mrs Nicolson (as tutor of two pupil children)

Second Party (tutor)

Mrs Nicolson and others (trustees)

Third Party (trustees)

Procedural Posture

Special Case (succession) / Inner House, Court of Session, Final Judgment

Legal Issues

  1. 1 Whether the holograph settlement of 31st July 1917 was revoked by the birth of the testator's second child on 6th April 1918
  2. 2 Whether, if revoked, the trust-disposition and settlement of 13th February 1917 is operative as an effectual disposition of the testator's estate or the estate falls to intestacy

Ratio Decidendi

The holograph will of 31st July 1917 was revoked by the birth of the testator's second child, as there were no special circumstances to rebut the presumption of revocation. The prior trust-disposition and settlement of 13th February 1917, which was only impliedly revoked by the holograph will and provided for after-born children, became operative as the effectual disposition of the testator's estate.

Court Disposition

The Court answered: (1) the holograph settlement of 31st July 1917 was revoked by the birth of the testator's second child; (2a) the trust-disposition and settlement of 13th February 1917 is operative as an effectual disposition of the testator's estate; (2b) the estate does not fall to intestacy.

Orders

  • The trust-disposition and settlement of 13th February 1917 to be administered as the operative will.