McIldowie v Muller [1979] ScotCS CSIH_1 (16 February 1979)

McIldowie v Muller [1979] ScotCS CSIH_1 (16 February 1979)

The mere fact that a notary's partner is appointed trustee in a will, without a clause authorising remuneration as law agent, does not create a sufficiently real or likely disqualifying interest to invalidate the notarial execution of the will.

Citation
[1979] ScotCS CSIH_1
Parties
Appellant: M'ILDOWIE; Respondent: MULLER
Jurisdiction
Scotland
Judgment Date
16 February 1979
Procedural Posture
Appeal / Judgment on Appeal From Sheriff Court Interlocutor
Outcome
appeal allowed
Legal Topics
Notarial Execution of Wills, Disqualifying Interest of Notary, Trustee Appointment, Remuneration Clauses in Wills
Succession Law Property Law Trusts Notarial Execution of Wills Disqualifying Interest of Notary Trustee Appointment Remuneration Clauses in Wills

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Parties

M'ILDOWIE

Appellant

MULLER

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Sheriff Court Interlocutor

Legal Issues

  1. 1 Whether a notary is disqualified from executing a will where his partner is appointed trustee but the will contains no clause authorising remuneration of trustees as law agents
  2. 2 Whether the mere fact of partnership between notary and trustee constitutes a disqualifying interest

Ratio Decidendi

The mere fact that a notary's partner is appointed trustee in a will, without a clause authorising remuneration as law agent, does not create a sufficiently real or likely disqualifying interest to invalidate the notarial execution of the will.

Court Disposition

appeal allowed

Orders

  • Sheriff's interlocutor refusing confirmation set aside
  • Warrant granted to Commissary Clerk to issue Confirmation in favour of the appellant as executor nominate