Clyde c Clyde [1958] ScotCS CSOH_6 (16 January 1958)

Clyde c Clyde [1958] ScotCS CSOH_6 (16 January 1958)

The pursuer's averments, even if proved, are insufficient to overcome the presumption that the will, last known to be in the deceased's custody and not found at death, was destroyed by him with intent to revoke. Benevolence or good relations with the pursuer do not displace this presumption.

Citation
[1958] ScotCS CSOH_6
Parties
Pursuer: Clyde; Defender: Hugh Clyde
Jurisdiction
Scotland
Judgment Date
16 January 1958
Procedural Posture
Action of Proving of the Tenor / Debate on Relevancy Prior to Proof
Outcome
action dismissed
Legal Topics
Proving Tenor of Lost Will, Presumption of Revocation, Testamentary Documents
Succession Law Property Law Proving Tenor of Lost Will Presumption of Revocation Testamentary Documents

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Parties

Clyde

Pursuer

Hugh Clyde

Defender

Procedural Posture

Action of Proving of the Tenor / Debate on Relevancy Prior to Proof

Legal Issues

  1. 1 Whether the pursuer's averments are sufficient to overcome the presumption that a missing will was destroyed by the deceased animo revocandi (with intent to revoke)
  2. 2 Whether the facts averred justify allowing proof of the tenor of the lost will

Ratio Decidendi

The pursuer's averments, even if proved, are insufficient to overcome the presumption that the will, last known to be in the deceased's custody and not found at death, was destroyed by him with intent to revoke. Benevolence or good relations with the pursuer do not displace this presumption.

Court Disposition

action dismissed

Orders

  • first plea in law for the defender sustained
  • action dismissed