Mackintosh's JF v Lord Advocate [1935] ScotCS CSIH_1 (01 February 1935)

Mackintosh's JF v Lord Advocate [1935] ScotCS CSIH_1 (01 February 1935)

The bequest is void because an indispensable part of the testatrix's project—exhuming and reinterring the remains of her uncle and aunt—cannot be lawfully accomplished by a stranger under Scots law. The project is not severable, and thus the entire direction fails.

Citation
[1935] ScotCS CSIH_1
Parties
Petitioner: MacKintosh's Judicial Factor; Respondent: Lord Advocate
Jurisdiction
Scotland
Judgment Date
01 February 1935
Procedural Posture
Petition for Directions (succession/trusts) / Court of Session Inner House, at Advising
Outcome
Bequest declared void; estate to be administered as intestate estate; Crown's claim as ultimus haeres to be complied with.
Legal Topics
Testamentary Capacity, Validity of Testamentary Directions, Exhumation of Remains, Public Policy Limits on Wills
Succession Law Trusts and Estates Property Law Testamentary Capacity Validity of Testamentary Directions Exhumation of Remains Public Policy Limits on Wills

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Parties

MacKintosh's Judicial Factor

Petitioner

Lord Advocate

Respondent

Procedural Posture

Petition for Directions (succession/trusts) / Court of Session Inner House, at Advising

Legal Issues

  1. 1 Is a testamentary direction to build a vault for the testatrix and to exhume and reinter relatives' remains valid under Scots law?
  2. 2 Does the law permit a testatrix to direct the exhumation and reinterment of third parties' remains?
  3. 3 Is the bequest void for impossibility or illegality?

Ratio Decidendi

The bequest is void because an indispensable part of the testatrix's project—exhuming and reinterring the remains of her uncle and aunt—cannot be lawfully accomplished by a stranger under Scots law. The project is not severable, and thus the entire direction fails.

Court Disposition

Bequest declared void; estate to be administered as intestate estate; Crown's claim as ultimus haeres to be complied with.

Orders

  • Estate to be administered as intestate estate.
  • Judicial factor to comply with the claim of the Crown as ultimus haeres.