Naismith v Boyes, 1899 1 F (HL) 79
Citation:Naismith v Boyes, 1899 1 F (HL) 79
Rule of thumb:Can a child be written out of their parent’s will? No, they will always be entitled to a basic % of the will. Can a third party creditor take all of a person’s will and leave the widow & kids with nothing? No, the widow & kids do have some rights that ranks alongside third party creditors.
Judgment:
The Court in this case affirmed the principle of ‘legal rights’ – this means that under succession law the rights of surviving spouses and children are considered to be debts that cannot be written out of the will by the deceased person, with any terms purporting to do this invalid, and this also means that they do also have some rights against third party creditors over this as well.
Ratio-decidendi:
‘The legal claims of the widow and children are not, strictly speaking, rights of succession... They are in the nature of debts which attach to the free succession after the claims of onerous creditors have been satisfied. Hence, it has frequently been said judicially that, in respect of their legal claims, the widow and the children are heirs in competition with onerous creditors, and are creditors in competition with heirs’, Lord Watson at 81
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.