Carmichael's Executors v. Carmichaels [1909] ScotLR 807 (04 June 1909)

Carmichael's Executors v. Carmichaels [1909] ScotLR 807 (04 June 1909)

The holograph portion of the will was sufficient to constitute a valid testamentary writing and trust; the widow took a liferent not forfeited by remarriage; the children's interests vested a morte testatoris; restrictions on sale and return of capital provisions were invalid.

Citation
[1909] ScotLR 807
Parties
First Parties: Robert Carmichael and Robert Archibald Carmichael (Executors-nominate of George Carmichael); Second Parties: Miss Isabella Carmichael, Robert Archibald Carmichael, George Laws Carmichael; Third Party: Mrs Jane Clark or Carmichael (widow); Fourth Parties: Arthur John Carmichael, Alexander Carmichael, Helen Carmichael
Jurisdiction
Scotland
Judgment Date
04 June 1909
Procedural Posture
Special Case (court of Session, Inner House, First Division) / Judgment on Validity and Construction of Will
Outcome
Will held valid; trust constituted; widow entitled to liferent not forfeited by remarriage; children's interests vested at testator's death; restrictions on sale and return of capital provisions held invalid.
Legal Topics
Validity of Testamentary Writings, Holograph Wills, Trusts, Liferent, Vesting of Interests, Restrictions on Alienation, Return of Capital on Death Without Issue
Succession Law Wills and Probate Validity of Testamentary Writings Holograph Wills Trusts Liferent Vesting of Interests Restrictions on Alienation +1 more

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Parties

Robert Carmichael and Robert Archibald Carmichael (Executors-nominate of George Carmichael)

First Parties

Miss Isabella Carmichael, Robert Archibald Carmichael, George Laws Carmichael

Second Parties

Mrs Jane Clark or Carmichael (widow)

Third Party

Arthur John Carmichael, Alexander Carmichael, Helen Carmichael

Fourth Parties

Procedural Posture

Special Case (court of Session, Inner House, First Division) / Judgment on Validity and Construction of Will

Legal Issues

  1. 1 Whether a partly printed, partly holograph, unsigned as holograph, will is valid as a testamentary writing
  2. 2 Whether a trust was constituted in favour of the executors
  3. 3 Nature of the widow's interest (absolute or liferent, and whether terminable on remarriage)

Ratio Decidendi

The holograph portion of the will was sufficient to constitute a valid testamentary writing and trust; the widow took a liferent not forfeited by remarriage; the children's interests vested a morte testatoris; restrictions on sale and return of capital provisions were invalid.

Court Disposition

Will held valid; trust constituted; widow entitled to liferent not forfeited by remarriage; children's interests vested at testator's death; restrictions on sale and return of capital provisions held invalid.

Orders

  • First question (validity of will) answered in the affirmative.
  • Second question (trust constituted) answered in the affirmative (first branch) and negative (second branch).