Duncan v. Crichton's Trustees and Others [1917] ScotLR 460 (30 May 1917)

Duncan v. Crichton's Trustees and Others [1917] ScotLR 460 (30 May 1917)

The claim for legitim by Mrs Bissett is a common law claim and not a bequest under the will; therefore, substantial gifts made to her by the testator during his lifetime are subject to collation unless it is proved they fall within exceptions such as recompense for services rendered. The settlement does not exclude the operation of collation.

Citation
[1917] ScotLR 460
Parties
Pursuer: Mrs Annie Crichton or Duncan; Defender: Thomas Smith and others (Crichton's Trustees); Defender: Mrs Margaret Russell Crichton or Bissett and others
Jurisdiction
Scotland
Judgment Date
30 May 1917
Procedural Posture
Succession Dispute / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, Proof Before Answer Allowed
Outcome
Interlocutor of Lord Ordinary recalled in part; second plea-in-law for defenders repelled; proof before answer allowed on the making and value of gifts and on the averments regarding the nature of the gifts.
Legal Topics
Legitim, Collation Inter Liberos, Testamentary Gifts, Advances to Children, Interpretation of Settlements
Succession Law Scots Law Legitim Collation Inter Liberos Testamentary Gifts Advances to Children Interpretation of Settlements

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Parties

Mrs Annie Crichton or Duncan

Pursuer

Thomas Smith and others (Crichton's Trustees)

Defender

Mrs Margaret Russell Crichton or Bissett and others

Defender

Procedural Posture

Succession Dispute / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, Proof Before Answer Allowed

Legal Issues

  1. 1 Whether gifts made by the testator to one daughter during his lifetime must be collated when she claims legitim under the settlement
  2. 2 Whether the settlement's direction to pay legitim constitutes a bequest or a direction to satisfy legal rights
  3. 3 Whether the nature of the gifts (as recompense for services or otherwise) excludes them from collation

Ratio Decidendi

The claim for legitim by Mrs Bissett is a common law claim and not a bequest under the will; therefore, substantial gifts made to her by the testator during his lifetime are subject to collation unless it is proved they fall within exceptions such as recompense for services rendered. The settlement does not exclude the operation of collation.

Court Disposition

Interlocutor of Lord Ordinary recalled in part; second plea-in-law for defenders repelled; proof before answer allowed on the making and value of gifts and on the averments regarding the nature of the gifts.

Orders

  • Recall interlocutor of 17th April 1917
  • Repel second plea-in-law for defenders