MacFarlane’s Trustees v Oliver, (1882) 9 R 1138
Citation: MacFarlane’s Trustees v Oliver, (1882) 9 R 1138
Rule of thumb: Can you be written out a will? Yes & No - there are some immediate family members with statutory rights to inheritance which a person cannot write of their will, albeit extended family can be.
Judgment:
The Court in this case affirmed the principle of ‘absolute forfeiture’ – this is distinct from legitim because under ‘legitim’ it is only the actual terms of the will that are rejected, and not the residue from the person’s estate, ‘It appears to me that, as the doctrine of election which gives rise to the claim of compensation is based on equity only, it is inconsistent with absolute forfeiture. No doubt in some cases absolute forfeiture does take place, because the subject provided by the will is of less value than that to which the legatee is otherwise entitled; and so the question of forfeiture rarely occurs. But I can see no ground in equity for holding that the “disappointed devisees”, to whom full compensation have been made, are, nevertheless, entitled to claim that the benefit intended for the repudiating legatee shall be absolutely forfeited by him, and shall accrue to them to the effect of conferring upon them a benefit which the testator never intended for them. Equity appears to me to demand in such cases compensation – full compensation – but nothing more, out of the bequest to the repudiating legatee, leaving him to benefit by the surplus’, Lord Curriehill
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.