Moss’s Trs v Moss’s Trs, 1958 SC 501
Citation: Moss’s Trs v Moss’s Trs, 1958 SC 501
Rule of thumb: Where there multiple conditions in a will to get property from it, are these terms of the will valid? As a rule of thumb, where there are multiple conditions, rather than just one condition, to obtain the property, then this will be deemed onerous & the person will just be entitled to it.
Judgment:
This case affirmed the principle of ‘single, plural and multiple contingency conditions’ attached to terms in will – it affirmed that where someone has one single ‘if’ condition being fulfilled to make a condition effective in order for the person to get their legacy/money then it will likely be valid, if there are 2 ‘if’ conditions then the conditions might not be, and if there are multiple ‘ifs’ then the conditions will likely not be valid. The Court did emphasise that this cannot be said with certainty as a ‘rule of thumb’ – this is just directional and the conditions attached to each term for people have to be looked at in their own right. If there are just too many ‘ifs’ such that the testator’s intention is not clear enough in the view of the Judge, then the conditions will not be enforceable, but if the Judge deems there is clarity then the conditions on the term will be enforceable. The facts of this case were that under a will the testator granted certain people liferents to stay in a property, and it was deemed that the last person to survive of them became the owner of the house. It was argued that these conditions were not sufficiently clear making the conditions ineffective, such that all the people granted life-rents just became joint owners instead, free to sell the property and share the proceeds. The Court held that the conditions attached to this term were sufficiently clear and the term was enforceable in full, ‘the condition to be resolved remains essentially the same, and I cannot see that it matters whether the issue which may emerge to defeat B comes from one source or two. The contingency is the emergence of issue from a liferenter or liferenters... It is a single contingency with two possible aspects ... There is no rule of thumb about the effect of single or plural contingencies. As the doctrine rests ultimately on a presumption that the testator intends the legatee to be vested rather than that his interest be suspended, that presumption must yield to anything in the deed that points to a contrary intention. If there be a series of complicated contingencies calling for construction there may well be in them or elsewhere in the deed indications that the testator intended that vesting should be postponed... What one can safely say on the wider topic of double contingency is simply this. In approaching the task of discovering the testator’s intention it is not necessarily fatal to the application of the presumption that the testator has put in the deed more than one resolutive condition...’, ’, Lord Justice Clerk Thomson at 95
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.