Milne v Smith, 1982 SLT 129

Citation: Milne v Smith, 1982 SLT 129

Rule of thumb: Where there is a term in a will which no one who knows the person well thinks they made, does the condition have to be enforced? If there is a term in a will which the testator would not have had the knowledge, passion, or the skills to make, there is a presumption that the testator did not make it & the term is unenforceable – this is hard to prove though.

Judgment:

Where there is a term in a will which it is unlikely that the testator would have had the knowledge to make, this term is not enforceable, ‘It would be a strange construction of a will if it were necessary to read into it by inference a direction which the testator was not competent to make’, Lord Stott at 130

Ratio-decidendi:

Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.