Avesterman (Westerman's executor) v. Schwab and Others [1905] ScotLR 43_161 (21 November 1905)

Avesterman (Westerman's executor) v. Schwab and Others [1905] ScotLR 43_161 (21 November 1905)

The law of the domicile of the husband at the time of marriage governs the effect of marriage on the will. As the husband was domiciled in Scotland, Scottish law applies, under which marriage does not revoke a prior will. Therefore, the will executed by Mrs Westerman before her marriage remained valid and was not revoked by her subsequent marriage to a domiciled Scotsman.

Citation
[1905] ScotLR 43_161
Parties
Pursuer: Thomas Collette Westerman (executor-dative of Mrs Sarah Ann Scott or Westerman); Claimant/appellant: Frederick Schwab and others (executor and legatees under will); Claimant/respondent: George Worth and others (next-of-kin)
Jurisdiction
Scotland
Judgment Date
21 November 1905
Procedural Posture
Multiplepoinding / Appeal From Sheriff to Court of Session Inner House, First Division
Outcome
Appeal allowed; Sheriff's interlocutor recalled; Sheriff-Substitute's judgment affirmed.
Legal Topics
Will Revocation by Marriage, Domicile and Succession, Effect of Marriage on Testamentary Dispositions, Conflict of Laws
International Law Succession Private International Law Will Revocation by Marriage Domicile and Succession Effect of Marriage on Testamentary Dispositions Conflict of Laws

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Parties

Thomas Collette Westerman (executor-dative of Mrs Sarah Ann Scott or Westerman)

Pursuer

Frederick Schwab and others (executor and legatees under will)

Claimant/appellant

George Worth and others (next-of-kin)

Claimant/respondent

Procedural Posture

Multiplepoinding / Appeal From Sheriff to Court of Session Inner House, First Division

Legal Issues

  1. 1 Whether a will executed by an Englishwoman prior to marriage is revoked by her subsequent marriage to a domiciled Scotsman
  2. 2 Which law governs the revocation of the will: English or Scottish law

Ratio Decidendi

The law of the domicile of the husband at the time of marriage governs the effect of marriage on the will. As the husband was domiciled in Scotland, Scottish law applies, under which marriage does not revoke a prior will. Therefore, the will executed by Mrs Westerman before her marriage remained valid and was not revoked by her subsequent marriage to a domiciled Scotsman.

Court Disposition

Appeal allowed; Sheriff's interlocutor recalled; Sheriff-Substitute's judgment affirmed.

Orders

  • The will executed by Mrs Westerman on 4th June 1897 remains valid and effectual.
  • The claimants Schwab and others (legatees under the will) are entitled to the fund in medio.