This is a chapter from the Bloomsbury Professional book Drafting Wills in Scotland, 2nd Edition, which is a guide to Scottish will-writing, containing a set of precedent style wills in a form appropriate to modern Scots law. The style wills can be combined and adapted to meet individual requirements. The book includes commentary on the style wills and more general discussion on drafting wills. Includes content from the CD ROM that accompanies the hard copy of this book.
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Table of Contents
3.1 This chapter considers a number of clauses covering general matters, which occur in all (or virtually all) of the Styles presented. It is thought that some provision for all of the matters covered by these clauses will be required in almost every full will that may be drafted. That is not to say that the particular clauses included in the Styles will be appropriate in absolutely every case, but some thought should be given to methods of dealing with each item mentioned.
3.2 Each Style of will[1] commences with the wording 'I, A (design), in order to settle the succession to my estate after my death provide as follows…'. The designation of the testator is usually achieved simply by address, although in many older styles it was common to include the testator's occupation or other position. There is no reason why this should not be done, but it is unnecessary. The key point about the designation of the testator is that its sole function is identification of the person making the will. This could only be in doubt in very rare circumstances, but if the same solicitor represents a number of members of the same family, several of whom have the same name, it may be appropriate to include some further form of identification. This should at least be done for the solicitor's internal office use, to avoid possible embarrassments on the testator's death! This matter is addressed briefly again in paragraph 9.9.
The preliminary narrative explaining the purpose of the deed being created is not strictly necessary, but it does serve to set out succinctly exactly what will be achieved once the deed is completed and signed. This may be of positive value with some testators; and is unlikely to be detrimental in most conceivable circumstances.
3.3 All the Styles of wills[2] included in this book contain a direction by the testator that all prior wills and testamentary writings are revoked.
This clause comes first in each Style and leaves the reader in no doubt that what follows is intended to be a completely fresh start by the testator in making provision for the succession to his estate. The clause mentions prior wills and testamentary writings to ensure that there is no possible confusion or argument over whether any writing of a testamentary nature could somehow be distinguished and be considered to continue in force despite the direction in the new will, if the writings were not inconsistent.
The revocation clause would, however, be insufficient by itself to revoke a survivorship destination in an earlier disposition[3]. A point to note is that if a person dies after being divorced a special destination may in effect be washed out by statute. This also applies in relation to the death of a civil partner[4].
In general if a testator has promised or bound himself contractually to leave his estate or a particular bequest to a particular person, a later will in contravention of this promise or contract is voidable, in so far as it is in breach of the obligation. It is therefore reducible[5]. This does not mean that the testator cannot use the property during his lifetime. It would also be subject to a claim for legal rights on his death, possibly to the detriment of the other party to the lifetime contract[6].
3.4 It is generally advisable for the solicitor to take the testator's instructions, in writing, to destroy previous testamentary writings in the solicitor's possession and that he suggests to the testator that he destroys any in his own possession. Where it is shown that a testator duly executed a will and had it at one time in his custody, but it is not forthcoming at his death, then the presumption will be that it was destroyed animus revocandi unless it is shown that destruction occurred without animus revocandi on the part of the testator[7]. For example, the destruction may have been accidental, due to insanity, or done without his consent.
Testamentary writings which are not destroyed may be revived[8]. In both of the cases referred to an earlier will was retained in view of the lack of instructions to destroy and those earlier wills revived. This doctrine applies even when the will now revoked or destroyed contained a clause revoking the previous will.
A solicitor does not appear to have the power to destroy an earlier will without the client's express instructions. It seems strange that the testator can purport to revoke all previous testamentary writings, but due to other circumstances revive those previous testamentary writings which he had obviously not intended to revive, in view of the fact that he believed that the earlier will had been superseded. It is, however, possible to think of advantages in retaining earlier wills. If there is doubt as to the testator's capacity it might be preferable that an earlier will revives than to have an intestacy. Where a client makes relatively minor amendments to a complicated will with many legacies by way of a brand new will, and the new will is found to be defective, invalid or is reduced, the earlier will would revive if not destroyed. The earlier will could represent, by and large, the testator's wishes which would normally be preferable to intestacy.
3.5 If a testator dies and makes no provision for children who are or who may be born subsequent to the date of his will, there is the presumption that this omission was unintentional. The settlement will be treated as revoked (the conditio si testator sine liberis decesserit). However, it is apparent that this conditio is not an absolute rule of revocation, but the possibility of it being invoked arises at the birth of a subsequent child. The conditio as applied in Scots law today gives the subsequently born child the option to apply to a court to have the will treated as revoked on the ground that there was no provision for the child in it.
The court will grant this request if satisfied that no provision is made for the later child and there is no indication that the testator intended the will to stand in spite of the birth of the child[9].
Greenan v Courtney is the first case on the conditio for a very long time and is worth reading, even though the central point was clarifying the nature of the evidence necessary to establish an intention contrary to that which the law presumes where children are born after the date of a will. A successful revocation of a will by the conditio could lead to an intestacy in which the surviving spouse would take his prior rights, which could allow the whole of the estate to pass to the surviving spouse depending on the values involved. A better result for the child might be achieved if he claims legal rights in his late parent's estate, letting the will remain in force. The estate may well have been left to the other parent who would have been willing to benefit the child, in effect from the sum of both the estates, in due course on the second death. These matters would have to be weighed against the time, trouble and expense of litigation, bearing in mind what the end result could be for the child.
To avoid a challenge the conditio could be expressly excluded. A simple statement that the conditio did not apply to a particular bequest would generally be sufficient[10]. The conditio could also be excluded by implication.
3.6 The divorce of a testator after making a will does not normally affect a bequest, even where the beneficiary is named as, say, 'my husband John Smith[11]. However, if it is clearly expressed or implied in the will that the reference to 'husband' etc is not merely descriptive, but the provisions are to that individual in their capacity as spouse, then those provisions may lapse on divorce[12]. The same would seem likely to apply to civil partners.
It is probably fair to say that most people would not wish to continue to benefit their ex-spouses, whether during the divorce procedure or thereafter. While it is possible that this rule may change in the future, until such time as it does an appropriate amendment should be made to the will, as soon as separation occurs. Although many jurisdictions recognise automatic revocation of wills on a divorce or subsequent marriage, Scots law does not, at least at present (see further para 6.3).
3.7 Some clients may have more than one will. If they are domiciled in this country but have heritable property abroad, they may be advised to make a will in the country where the heritable property is situated, perhaps only in respect of that property. Great care must be taken that whichever will is made later does not include a general revocation clause which may have an effect on the earlier will. If one country recognised the validity of a will made in another country, a revocation clause in the later will could have the effect of revoking the first will in its entirety.
3.8 A testator may have nominated someone to receive a lump sum death benefit payable at the discretion of pension fund trustees. A general revocation clause in a will would not affect such a nomination, which is not a testamentary writing. It is doubtful whether a specific revocation would have the desired effect and any attempt to change the nomination should be made through the pension fund trustees (see paras 2.18–2.20).
3.9 Another area where revocation becomes an important issue is mutual wills. Occasionally two clients, usually husband and wife or two unmarried sisters or brothers, will ask for a mutual will. This usually means that they want to leave everything to the survivor and they will not know that the term 'mutual will' should strike fear into the heart of their solicitor. The solicitor should undoubtedly persuade them to draw up separate wills leaving everything to one another, with a destination over to a third party on the death of the survivor.
Under this arrangement, each will is in fact a separate deed in which one person bequeaths his own estate to the survivor or survivors of himself and a selected other person or persons.
Although revocation of an actual mutual will can cause a problem, there is a presumption that a mutual will is in effect two or more wills contained in one deed and therefore it is revocable[13].
However, in a mutual will where there is a bequest to the survivor of two persons, and then on the death of the last to die to a third party, this could be considered contractual and therefore not revocable before or after the death of the first to die[14].
It would, of course, be possible to overcome most of the difficulties by careful drafting[15]. A lack of appreciation of the problems of drafting such a will could lead to very substantial problems, for example if the disposal of the estate of the second to die was conditional on the other having survived. This could mean that the estate falls into intestacy[16].
3.10 The Styles presented provide for the appointment either of executors or of executors and trustees.
Although governed by the same general principles of administration[17], the offices of executor and trustee are distinct.
Appointment of trustees alone is sufficient[18], while executors-nominate have all the powers of trustees, unless a will makes express provision to the contrary[19].
An executor is responsible for the collection of an estate, its realisation and distribution to the beneficiaries. A trustee is responsible for retaining an estate and its administration in accordance with continuing trust provisions.
Thus, the need to distinguish between the appointment of executors and that of executors and trustees is to be determined not by the powers available to them, but by whether or not a will contains continuing trust provisions[20].
3.11 Where the requirement is merely for the realisation and distribution of an estate, then the appointment of executors alone will be sufficient (S1.2, S2.2, S3.2, S4.2, S8.2, S11.2, S12.1).
Although in most cases it is likely that executors will have adequate administrative powers under statute and common law, it is preferable for powers to be granted in the short form (see Chapter 7 and S1.5, S2.24, S3.7, S4.7, S8.8, S11.8, S12.3), particularly in respect of executors acting as agents, and provisions on remuneration and resignation (see paras 3.23–3.24; 7.2).
No conveyance to executors is necessary, survivorship is implied and power to assume is automatic. Therefore the appointment need be nothing more than of persons as 'my executors' (S1.2, S2.2, S3.2, S4.2, S8.2, S11.2, S12.1).
However, even where an estate is simply to be realised and distributed, executors may find themselves having to retain a beneficiary's share. That will commonly arise where a will provides for a predeceasing beneficiary's share to pass to his issue, with vesting on the testator's death. In such cases it will usually be desirable to give executors power to pay or apply the income or capital of the share to or for the benefit of such beneficiary or to retain the share until the beneficiary attains legal capacity or to pay over the share to the parents or guardians of the beneficiary[21].
Such a provision of course will not be appropriate if the vesting of a beneficiary's interest is to be postponed until a later age is attained, in which case trust provisions and the appointment of trustees will be required, together with powers in the extended form[22].
3.12 Where the vesting of any beneficiary's interest is to be postponed or there are continuing trust provisions of any other description, the appointment should be of executors and trustees and powers will be required in the extended form[23]. Usually this will be the case when children's, young persons' or discretionary trusts are created by a will (although such powers are omitted in the deliberately brief Style S8).
Even if there are no continuing trust provisions in the first instance, the possibility of a continuing trust and, therefore, the need for trustees, may still arise. For example, although the initial requirement simply may be for the executry estate to be distributed to beneficiaries of full age, in the event of any beneficiary predeceasing, the testator may wish such beneficiary's issue to inherit only if they survive and attain a specified age.
As with executors, no conveyance is necessary, survivorship is implied and power to assume is automatic.
The appointment of named executors and trustees 'along with any other persons who may be appointed or assumed' (S5.2, S6.2, S7.2, S9.2 and S10.2) is so worded to ensure that any discretionary powers are granted not only to the original trustees and executors but also to any subsequently assumed[24].
Usually, the appointment will be of executors and trustees who are the same persons. It is competent, although unusual, to appoint executors for the purpose of administering the executry estate and separate trustees responsible for the administration of any continuing trust on completion of the executry administration. Where executors and trustees are the same persons, the executors obtain title to the deceased's whole estate by virtue of the confirmation in their favour[25]. Generally speaking, nothing further need be done because, on completion of the executry administration, as trustees they will also have title to the trust estate through the confirmation. In the less usual case of executors and trustees being different persons, the executors will require to transfer the property to the trustees[26].
3.13 It is generally accepted that any person of full legal capacity, whether natural (ie an individual) or juristic (ie a corporation), may be appointed an executor or trustee[27].
There was no formal disqualification of a minor or pupil as an executor and there is authority for the appointment of a minor[28]. However, there were practical difficulties[29] and it was not a practice to be recommended. In particular, it was inconvenient for minor executors to discharge their duties only through their guardians and sometimes not possible even with their guardian's approval.
As a result of the Age of Legal Capacity (Scotland) Act 1991 it is easier for a person aged 16 or 17 to act as an executor or trustee, but persons below 16 cannot act[30]. Whether or not a 16- or 17-year old person will be regarded by most testators as a suitable executor or trustee is another matter. However, in the case of straightforward estates, if the testator has an adolescent child, the appointment of such child as an executor should not be dismissed out of hand. There is nothing to prevent a testator appointing one or more of his children to be executors or trustees conditional upon attaining capacity (see para 3.27).
At one time it was not uncommon for testators to appoint the 'junior partner for the time being of Messrs…' whether or not in conjunction with another named partner, partners or other persons. This practice is no longer common. This is a welcome development, for although it may have been intended to ensure continuity and client loyalty, the person ultimately appointed was likely to be completely unknown to the testator, even assuming the firm itself was still in existence at the date of death. For similar reasons, it is not desirable to appoint 'the partners for the time being of Messrs…' or to appoint the firm itself, although the latter is possible in theory due to its separate legal persona.
A further disincentive to the appointment of an unnamed partner or all of the partners of a firm is that, at the time of applying for confirmation, a petition along with affidavit evidence will be needed to establish who is the specified partner or who are all the partners.
The holders of specified offices may be appointed ex officio as executors or trustees, either along with other persons appointed by name or alone[31] but this practice was, and is, relatively rare.
Bankruptcy is no bar to appointment, although insanity is.
Executors and trustees do not require to be resident in the United Kingdom but it may be inconvenient if they are not (see para 3.20).
The appointment of executors and trustees may be qualified in a number of ways and such appointments are considered later (see paras 3.26–3.30).
3.14 From the testator's point of view, the two most obvious advantages of corporate appointment are the guarantee of continuity and the fact of independence, especially from possible family squabbles. In addition such an appointment may suit a testator who is unsure of which individuals to appoint as executors or trustees.
S2.2 has as one of the executors a trustee company. The Style envisages that this would be the trustee company of the firm of solicitors preparing the will[32]. A purely administrative advantage, and potential cost benefit, in this is that company officers, normally partners in the firm, can sign all documents in connection with the winding up of the deceased's estate.
The appointment of a solicitor's trustee company has a further administrative advantage after the testator's death. Once confirmation has been obtained and exhibited, all dividends, circulars, rights issues, bonus and company communications will be sent direct to the trustee or nominee company. Where individuals are appointed, such communications normally will be sent to the first-named executor, so that unless he is a partner in the firm concerned, it will be necessary to make alternative arrangements (but see para 3.15).
The commonest example of corporate appointment nowadays is probably that of solicitors' trustee companies. In the past the most common example would be the appointment of a bank or a bank's trustee company. In such cases it is usual for the will to contain the appointment of the bank as executor and trustee on the bank's standard terms and conditions of appointment, including its scale of remuneration, all of which vary from bank to bank. In some cases bank's terms and conditions provide that the bank is to be trustee sine quo non (see para 3.28). Banks normally will insist on, and supply, the particular form of appointment to be employed.
Doubt has been expressed as to the appropriateness of subsequently assumed or appointed (as opposed to originally appointed) corporate trustees exercising discretionary powers in respect of family and personal matters[33] when such discretion is more than purely administrative in character[34].
3.15 Where individuals are to be appointed executors or trustees and at least one of them is a solicitor, it is helpful to show the solicitor as the first-named executor or trustee in the will. The immediate practical advantage of this, following the testator's death and after confirmation has been obtained and exhibited, is that communications will be sent direct to him as first-named executor.
However, this may not always be to a testator's liking. Where it cannot be achieved at the time of the will being made, the solution after the testator's death is simply to add a crave in the oath to the inventory requesting that the solicitor be shown as the first-named executor in the confirmation.
If a solicitor is appointed executor or trustee, the will should permit him to charge fees and to resign. Both the short form and extended form of powers provide for this (see paras 3.23 and 3.24).
A testator may wish to leave a legacy to each of his executors or trustees, whether or not conditional on acceptance of office. A solicitor appointed executor or trustee could receive a small token legacy, but there are hazards in this (see paras 6.174–6.181).
3.16 Ideally, a testator should be advised to appoint not less than two executors or trustees and also to choose persons at least one of whom is likely to outlive him. For practical reasons, it is probably not desirable to have more than four.
3.17 Words such as 'assign', 'dispone', 'convey', 'bequeath', 'legate', 'give', 'grant', and others similar are often used. It is not necessary to use such specific words of transfer between the testator and his executors or trustees and the styles are framed accordingly.
In particular, the use of the word 'dispone' to carry heritable property to executors or trustees has not been necessary since the Titles to Land Consolidation Act 1868, section 20.
3.18 Executors and trustees cannot be compelled to accept office. A testator, therefore, should always be advised to inform executors and trustees of their proposed appointment so as to ensure in advance that they are willing to act[35].
If an executor or trustee receives a legacy conditional upon acceptance of office[36], he is not entitled to resign unless the will permits this[37].
3.19 Executors and trustees make decisions by majority, except in the rare case of an executor or trustee who is appointed sine quo non (see para 3.28). Each executor or trustee is, however, only liable for his own acts or omissions.
Section 3(c) of the Trusts (Scotland) Act 1921 provides that a majority of the trustees accepting office and surviving the deceased shall be a quorum, unless the will contains provisions to the contrary. A majority is the smallest number making more than half the total.
It is uncommon for a testator to appoint anything other than a majority to be the quorum, although it is competent to appoint a sine quo non executor and trustee (see para 3.28), or to provide that a stipulated number of executors and trustees shall be a quorum.
If a testator provides that a stipulated number of executors and trustees is to be a quorum and the total falls below that number, the quorum provision ceases to be operative and the administration may continue with the lesser number[38].
A testator can direct, in the event of the executors' and trustees' number, through non-acceptance, death, incapacity or resignation, being reduced below its original, or a set, level, that they shall assume such number as is necessary to bring the total number up to the required level[39]. An appropriate form of words would be:
'In the event of the number of my executors [OR Trustees] being for any reason reduced to less than its original level [OR less than (specified number)] I direct my executors [OR Trustees] to assume immediately such additional person or persons as shall restore the number of my executors [OR Trustees] to its original level [OR to (specified number)] [OR to not less than (specified number)]'.
3.20 If it is envisaged that executors and trustees might be abroad when needed to give a decision, then it may be desirable to make an addition to the clause appointing the executors – or in the case of a full-scale trust a separate clause – stipulating that a majority of the executors and trustees who may be in the United Kingdom from time to time, even if only one, shall be a quorum.
Therefore in the case of a will containing powers in the short form, a declaration in the following form could be added to the clause in which the executors are appointed (eg S1.2):
'…declaring that a majority of my executors who may be in the United Kingdom from time to time, even if only one, shall be a quorum.'
In the case of a will appointing executors and trustees and containing powers in the extended form, an additional clause could be inserted after the powers (eg between S5.11 and 5.12) in the following form:
'A majority of my Trustees who may be in the United Kingdom from time to time and, if there shall be only one Trustee in the United Kingdom then such Trustee alone, shall be a quorum.'
3.21 Appointment is joint and several and survivorship is implied, in the absence of anything to the contrary[40]. Thus, in the event of an executor or trustee dying, the ownership and administration of the estate remains with the surviving executors or trustees[41].
3.22 In all cases where there is appointment of executors and trustees, the Styles refer to trustees who may be assumed (S5.2, S6.2, S7.2, S9.2, S10.2).
Section 3(b) of the 1921 Act gives power to sole trustees or a quorum of trustees, if there are more than two, to assume new trustees. Strictly speaking, therefore, no reference in a will is needed to the assumption of executors or trustees, but if discretionary powers are given to the original executors and trustees it should be made clear that these powers are also given to executors and trustees who are assumed[42]. As has already been noted, doubt has been cast upon the exercise of discretionary powers by corporate trustees subsequently assumed or appointed[43].
The power of assumption is discretionary and may, or may not, require to be exercised. There is no rule governing the number of executors or trustees to be assumed at any particular time and, usually, the power is exercised so as to maintain numbers at their original level, as a result of death, declinature, incapacity or resignation[44].
Power of assumption may be restricted or excluded by the testator. Such restriction could, for example, be by stipulating the assumption of a certain person in certain circumstances, such as on attaining the age of legal capacity or on marriage. Alternatively, the testator could stipulate a maximum or minimum number of executors or trustees, the latter normally applying as regards a quorum (see para 3.19) or appoint a trustee sine quo non (see para 3.28).
It is competent for a testator to reserve the right, whether in favour of an executor or trustee, a third party or a beneficiary, to appoint a new executor or trustee in certain stated circumstances, but such provisions are construed strictly[45].
As section 3 of the 1921 Act provides that power to assume is implied unless the contrary is expressed, a testator presumably can exclude his executors' or trustees' powers of assumption, but it is difficult to see what benefits would be achieved by so doing.
It is now likely that an ex officio trustee may assume a new trustee[46].
3.23 Executors and trustees are entitled to resign office in the absence of any provision to the contrary in a will[47], subject to the proviso that a sole trustee may not resign without having assumed a new trustee[48] or trustees or the court has appointed new trustees[49].
Resignation of a trustee who is also executor infers resignation as executor[50].
A trustee who has accepted a legacy given on condition of accepting office (S2.4) or who is appointed to the office on the footing of receiving remuneration for his services is not entitled to resign office unless so permitted in a will[51].
All the Styles, whether granting powers in the short form (S1.5, S2.24, S3.7, S4.7, S8.8, S11.8, S12.3) or the extended form (S5.10.21, S6.11.21, S7.9.21, S9.7.21, S10.10.21), include the power to resign[52].
3.24 An executor or trustee must not be auctor in rem suam and can derive no personal benefit at the expense of the estate. The principle applies to all actings of executors and trustees and there are numerous authorities for strict interpretation of this doctrine[53].
It is entirely in order for an executor or trustee also to be a beneficiary, but he may not as an individual transact with the estate and may not purchase assets of the estate[54] unless specifically authorised to do so by the beneficiaries or by the will. The extended form of powers incorporates a provision specifically permitting this (S5.10.19, S6.11.19, S7.9.19, S9.7.19, S10.10.19; see also paras 7.23 - 24).
The offices of executor and trustee are gratuitous and there is no entitlement to remuneration, other than genuine out of pocket expenses.
An executor or trustee who is employed as factor or solicitor cannot receive remuneration for his services unless authorised by the will or by all parties who have or may have an interest therein. In a situation where there are beneficiaries lacking legal capacity, or prospective beneficiaries, it would not be possible to take the agreement of all the parties, so it is essential in the case of both the short form (S1.5, S2.24, S3.7, S4.7, S8.8, S11.8, S12.3) and extended form (S5.10.22, S6.11.22, S7.9.22, S9.7.22, S10.10.22) of powers that executors or trustees are given power to appoint solicitors or agents from their own number and to allow them suitable remuneration (see para 7.27).
Similarly, provisions applying to the running of businesses in which the trustees may be involved are included in S5.10.9, S6.11.9, S7.9.9, S9.7.9, S10.10.9[55].
3.25 Sections 3 and 4 of the Trusts (Scotland) Act 1921 contain specific provisions relating to trustees' powers.
In the case of section 3, and subject to the provisos already considered above, such powers are implied unless the contrary is expressed in the deed.
The general powers contained in section 4 permit acts by the trustees when such acts are not at variance with the terms or purposes of the trust.
The powers of executors and trustees are considered in detail in Chapter 7.
3.26 A testator may wish to provide for the appointment of a substitute executor or trustee in the event of a nominated executor or trustee having predeceased or being incapable of acting following the testator's death.
The simplest example of this is where a testator decides to appoint one executor, A, whom failing B, but the principle applies equally where two or more persons have been appointed. The phrase 'whom failing' is considered to cover not only A predeceasing the deceased but also A's declinature or inability to act at the time of the testator's death[56]. Therefore, the following form of words can be used:
'I appoint A, whom failing B, to be my executor.
If the testator wishes to appoint a single executor, say his wife, and only in the event of her failure two other executors, the following form could be used:
'I appoint my wife A, whom failing B and C, to be my executor or executors'.
This relies upon the comma to work as intended, which cannot be satisfactory. If the first comma was omitted, the executors appointed would be either A and C or B and C, but the wife would not in fact act alone at all. The clause also refers to both 'executor' and 'executors', which makes subsequent references in the will awkward.
It would be preferable to use a wording which puts the matter beyond doubt, such as:
'I appoint (1) A whom failing (2) B and C to be my executors'.
This possesses the advantages also of being suitable for the appointment of two or more substitute executors and accommodating subsequent references in the will to 'executors' only.
Alternatively, as in S4.2, two executors B and C, may be appointed in the first instance, with the proviso that should either fail a third, D, will act.
In the event of the testator's spouse being appointed as sole executor or as one of a number of executors, it is preferable for the spouse's appointment not to be subject to survival for a specified period (as contrasted with a spouse's interest in the estate as beneficiary). There is no advantage to be gained in doing so and postponing the spouse's entitlement to be appointed executor may merely delay the administration.
If the surviving spouse finds himself as sole executor on the testator's death, an additional, or replacement, executor or executors could be assumed promptly and prior to confirmation.
If two, or more, executors are appointed and the testator wishes to ensure a long-stop appointment in the event of both, or all, having predeceased, declining or being incapable of acting the following form is suggested:
'I appoint A and B [OR A, B and C] and both [OR all] of whom failing, D to be my executors or executor.'[57]
If the testator wishes to appoint as an executor or trustee one partner in a legal firm, perhaps the partner he is used to dealing with, and that partner is of a similar age as, or is older than, the testator, there is a case for the substitute appointment of a younger partner.
3.27 The executor's or trustee's appointment may be conditional, for example, on attaining the age of legal capacity, (see para 3.13). In such circumstances the following form is suggested:
'I appoint A, B and, in the event of his having attained the age of legal capacity at the date of my death [OR as soon thereafter as he shall attain the age of legal capacity] [OR if and when he shall attain the age of legal capacity] C to be my executors.'
Other conditions, such as marriage or residence in Scotland are competent, although in all cases no conditional nomination is effective to unless the condition has been fulfilled[58].
3.28 Where two or more executors and trustees are appointed, it is possible to specify that one is to be party to every act of executorship or trusteeship, or has the right to overrule the others even if the others are in the majority when a decision is made. This is known as appointment sine quo non.
In this situation the executor or trustee sine quo non in effect has the privilege of vetoing the decisions and actions of the others if he accepts office. It is not common, but may, for example, be encountered in the case of banks (see para 3.14).
Although such appointments are rare, and likely to be of very limited application, the following form can be used as an addition to the clause appointing executors and trustees:
'…and A who, so long as he may survive and hold the office of executor [and trustee] shall be a sine quo non of any quorum of my executors [OR Trustees]…'.
An alternative avoiding the latin phrase and using a separate subclause might be:
'The agreement of the said A, so long as he shall act, shall be required in any decision of my executors [OR Trustees].'
Doubt was expressed at one time as to whether or not the appointment of an executor or trustee sine quo non prejudiced the trust purposes themselves. The correct view appears to be that the person's appointment as sine quo non could only be on condition of his acceptance, the existence of the trust provisions being presumed objects of primary importance to the testator and not subject to be defeated by the non-acceptance of a particular person[59].
It is as well to make it clear however, that the appointment of the sine quo non is conditional on his survivance and acceptance of office.
3.29 Conditions limiting the period during which an executor or trustee may act are permissible, for example a daughter while unmarried or a widow during widowhood. Appointments of an executor or trustee ex officio are always limited to the time he or she holds office[60].
3.30 It is competent, although very rare, for executors or trustees to be named to administer different portions of, or specific assets in, an estate. This could be encountered where a testator has estate in different countries and where he wished to appoint one set of executors or trustees to administer his estate, say, in the United Kingdom and another set to administer his foreign estate. In such a case, however, it would be more likely for him to have separate wills, each dealing with the appropriate portions of his estate (see Style S12 and paras 2.64–2.86). The question of who the executors or trustees should be will probably be subsidiary to the other reasons for the decision to deal with the worldwide estate in this way.
The appointment of different bodies of executors or trustees to act in relation to different parts of the estate all within the United Kingdom appears to be possible. This would be likely to cause immense problems, particularly in respect of title and administration, and quite clearly cannot be recommended[61].
3.31 Most of the styles in the first edition of this book had an informal writings clause. An example of that clause was:
"I direct my executors to give effect to any future writings subscribed by me however informal the same may be provided that in the opinion of my executors they clearly express my intentions."
Due to changes in the law, it is no longer thought that the inclusion of such a clause is of any benefit and it is no longer included in the Styles (see paras 2.62–2.63).
3.32 Most, but not all, of the Styles contain a general clause which directs that any legacy granted by any writing will be paid as soon as practicable after the death of the testator, free of government duties in respect of the death and of delivery expenses but without interest (see S1.3, S2.3, S3.3, S5.3, S6.3, S7.3, S8.3, S9.3, S10.3, S11.3).
This type of clause, while quite clear and succinct in its structure, covers several topics on which the client's instructions should be taken. The implications of not considering in detail the consequences of retaining or omitting the clause are substantial. Such a clause does not have to refer to all three aspects – government duties, delivery expenses and interest – but may refer to any combination of the three.
The clause in the Styles also refers to 'any legacy granted by any writing', which means that all such legacies in a will or codicil or any informal writing are covered by the clause. There is an obvious danger that having included the general clause in a will, the testator may decide to leave a legacy by an informal writing which, if the consequences had been fully explained to him, would have meant that the legacy would not have been given free of tax in particular. The lack of special instruction on this matter in the informal writing would mean that the general clause in the will prevails.
The same considerations apply to a codicil, although on the assumption that this is done formally by the solicitor, he should check the original will to ensure that the testator's wishes in the codicil are being implemented and that any clauses covering subsequent writings are taken into consideration.
The clause mentions that the legacies should be paid as soon as practicable and this is a protection to the executors against beneficiaries who pursue them unreasonably for early payment of a legacy. It is also a protection for the legatees against the executors unreasonably withholding payment.
The question arises as to how government duties, expenses and interest on legacies would be dealt with, if such a clause did not appear in the will.
3.33 If a will is silent on the question of expenses where a legacy is concerned, the expenses are the liability of the legatee. If a testator in Orkney leaves antique furniture to a relative in Devon, the delivery expenses would be substantial. The consequences of the legatee having to meet this expense may be to cause the sale of the furniture in Orkney on behalf of the legatee, which may well not be what either the testator or the legatee would have wished.
If the bequest is free of expenses, the residue will bear the expenses. While this might seem fairer, that judgment depends upon the size of the residue and the proportion which the expenses bear to the residue. The obvious time to consider potential expenses is at the time that instructions are taken for drafting the will, with a decision being made on who should bear them at that time.
3.34 There is no interest payable on specific legacies of objects producing no income. A reference to interest will generally be taken to be in connection with pecuniary legacies. If no term of payment is specified, then interest runs from the date of the testator's death unless realisation was then impossible[62]. This rule applies even if the instruction is to pay 'as soon as possible after my death'[63]. It is normally the case that realisation is impossible immediately after the death and that a reasonable amount of time from which interest should run is considered to be six months after the death. If payment is directed to be made at a definite date or event, then it runs from that date or event[64].
If the rate of interest is fixed then that rules, otherwise the rate is dependent on the rate which the estate is yielding on average[65]. If the estate is non-income producing no interest will be given[66].
A higher rate of interest may be payable if the executor has delayed paying unreasonably[67].
The exclusion of interest on pecuniary legacies is often incorporated in order to reduce time-consuming administration on behalf of the agents winding up the estate following the death. It is the duty of the executors to pay out the legacies as soon as practicable which must be when funds are available which are not earmarked for other purposes, such as the payment of tax. There should therefore be no loss to the legatee by such a clause excluding the payment of interest on legacies. The question of interest on pecuniary legacies is dealt with further at para 4.47.
3.35 From 1894 government duties on death have had a variety of names including legacy duty, probate duty, estate duty, capital transfer tax and inheritance tax. The main aim of the reference to government duties is to exclude the payment of what is currently inheritance tax out of any legacy. It is recognised that not only have these duties had different names in the past, but the name and type of tax could well change in the future, prior to the implementation of a will which may have been prepared at any time and remain unchanged until the death of the testator.
If the will says nothing, then inheritance tax due in respect of any chargeable legacy falls on the residue of the estate[68].
On the face of it, thus, the purpose adds nothing to the situation, provided the testator wishes all the tax to be paid from residue in respect of all legacies. It is appropriate, however, to draw the testator's attention to the fact that this is the case. Should a bequest be made, perhaps of a substantial nature, the tax will come out of the residue. This may cause a disproportionate reduction in the amount of the residue as compared to what the testator intended. An obvious example of this would be where a house represented, say, three-quarters of the deceased's estate, where the whole estate is taxable. If that legacy is free of tax, the residue will bear the tax on the whole estate, which could potentially wipe the residue out.
Another difficult situation would be where the residue is left to an exempt beneficiary such as a widow, widower or charity, but there is a tax-free legacy of the house to a child and the house has substantial value in excess of the inheritance tax nil rate band limit. The legacy would not just be of the house, but of the grossed-up value of the house, which when taxed would require the house to go to the legatee and an appropriate sum of money to be found by the executors to pay the tax, on the combined total of the value of the house and the tax on it[69]. This could substantially reduce the amount of residue available for the surviving spouse. The current effective rate of tax on the value above the nil rate band of inheritance tax is two-thirds of the amount above the limit.
It should also be remembered that grossing up may be required at a very complex level even in apparently simple wills. This applies where there are tax-free legacies to non-exempt persons, combined with another type of legacy to a non-exempt person (such as a specific legacy bearing its own tax, or a share of residue). A simple example would be a legacy free of tax to a son (perhaps of a specific asset), with the residue to be shared between a daughter and the surviving spouse. If the estate is of a sufficient size, the process of 'double grossing-up' is required[70]. The process becomes yet more complex where assets qualifying for business property relief or agricultural property relief are involved[71].
Care is required when one is dealing with directions that exempt and non-exempt beneficiaries are to receive "equal" shares – is the equality to come about before or after tax has been deducted from the shares in question? This can lead to complexities[72], but the starting point is to be clear as to the testator's intentions.
If one wishes to advise on such complex calculations, whether at the time of drafting a will or when administering an estate, reference to the specialist texts on inheritance tax will be required. Despite the enthusiasm of one (and one only) of the authors of this book, no examples are offered here!
3.36 Style S4 is an example of a will without the usual clause directing legacies to be paid free of tax and expenses. However, it contains a large legacy to grandchildren (S4.3) which includes a specific direction that the amount of this legacy is to be paid free of tax. The possible consequences of this should be explained to the testator.
In contrast, Style S2 contains two legacies (S2.8 and S2.19) which are to bear their rateable proportion of any government duties in respect of the testator's death. This demand will reduce the value of the legacy to the legatee; and if the legatee is merely receiving a specific asset (without a cash sum or a share of residue), he may require to pay to the estate any sum necessary to meet his legacy's share of the tax due. On the wording provided, this will be a simple fraction of the total tax due on the death estate.
The freedom from government duties in the standard clause is from those payable in respect of the testator's death. This may be contrasted with a general direction that legacies are to pass 'free of tax', particularly where affected assets are liferented. If legacies left free of tax are bequeathed in liferent from the date of death, rather than outright, this may create serious practical problems. Notably, a fund will require to be retained to meet a liability which will only arise at the conclusion of the liferent – but there is no accurate way of estimating the extent of this liability. Under current rules, it would depend on the size of the estate of the liferenter and any chargeable lifetime gifts made, but of course the whole system may change between the date of the testator's death and the conclusion of the liferent. The changes in Finance Act 2006 are a good example of this, although this particular aspect did not change. Assets liferented should generally bear their own share of tax due when the liferent comes to an end.
A related difficult situation which can arise concerns gifts made by the testator within seven years of his death, although the general clause does not specifically deal with such gifts. They might, however, not be considered when taking instructions for a will, as it might be assumed that any tax would be payable by the transferees. Such transfers could have been chargeable transfers when made, or potentially exempt transfers which would become fully exempt if the transferor were to survive for seven years. While it is normally the transferee who takes on the responsibility of paying the additional tax due on the donor's death within seven years, occasionally a transferor will attempt to make such transfers free of tax.
If the transferor had at the time of the gift agreed to pay any tax which might become due, then in effect a debt would have been created which would crystallise on his death. This would be the responsibility of the executors. The Revenue can also look to the executors where the donee of a lifetime gift fails to pay tax on his gift.
Such additional liabilities would fall on the residue of the deceased's estate. They are certainly relevant and the position should be checked, as with all potential liabilities of the testator.
Even if no promise to pay any tax has been made at the time of making lifetime gifts, the testator may decide when a draft will is being prepared to provide for any tax that may become due. This matter is dealt with at paragraph 4.46.
This is not, however, a book primarily on tax matters. To summarise the main points of relevance in this area:
(1) It should be clearly discussed with the testator how he wishes liability to government duties on legacies to be dealt with, particularly where substantial specific legacies or pecuniary legacies may be under consideration; and
(2) additional tax on chargeable lifetime transfers or potentially exempt transfers which became taxable on death is also relevant, not to the clause dealing with tax, expenses and interest, but generally when taking instructions for a will.
3.37 It is quite common for testators to record funeral instructions in their wills. There is of course no legal requirement for a person to do so. In many cases testators may feel that their families or next of kin have adequate knowledge of their wishes. Nevertheless, a will or formal codicil is a convenient, and arguably the most appropriate, place for such instructions to be recorded.
Funeral instructions can equally readily be recorded by note, in which case it is advisable for them to be stored with the testator's will to ensure that they are not overlooked or lost.
Some testators may wish to record specific funeral instructions in their wills. Others, having particular wishes, may not be aware that it is possible for this to be done. Many will not have considered such instructions at all.
The solicitor taking instructions should enquire if the testator has particular wishes and explain that these can be recorded in the will. This point is included in the items for discussion when taking instructions (see para 9.8).
Ideally, funeral instructions should appear at a point in a will where they can be found easily and quickly, this being an example of where the use of clause headings is particularly helpful. Usually they are inserted towards the end or, as in the Styles, as the last clause before the testing clause (S1.7, S3.10, S4.10, S5.14, S6.15, S8.11, S9.11, S10.14 and S11.10).
There is a school of thought favouring the instructions being shown in capital letters, so that what is required may be seen at a glance. Many testators are unlikely to find such a practice attractive and, therefore, it is not necessarily recommended.
The whole clause can be removed if it is not wanted.
3.38 The contents of funeral instructions are potentially as varied as testators themselves. They may range from the simplest of directions to instructions setting out in great detail the testator's wishes regarding his or her funeral arrangements.
Those most commonly encountered, however, are likely to include the following.
3.39 The simplest form which appears in most of the will styles is that which merely directs cremation S1.7, S3.10, S4.10, S5.14, S6.15, S8.11, S9.11, S10.14 and S11.10:
'I wish my body to be cremated'.
3.40 'I wish my body to be cremated and my ashes interred in Stonefields Cemetery, Lair number A 12.'
Interment usually will take place in a cemetery or churchyard, but it is possible for ashes to be interred elsewhere, subject to the controls subsequently referred to (see para 3.48).
3.41 The testator simply may wish to have his ashes scattered in a garden of remembrance at a crematorium:
'I wish my body to be cremated and my ashes scattered in a Garden of Remembrance [OR in the Garden of Remembrance at the [relevant crematorium]'.
Alternatively, if the testator wishes to have his ashes scattered in a place or spot with which he has a particular connection or towards which he feels particular affection:
'I wish my body to be cremated and my ashes scattered beside those of my dog Spotty at Powderhall Stadium, Edinburgh'.
This example, from the 1st edition of this book, does illustrate some of the difficulties with such instructions. Powderhall Stadium no longer exists. It might, however, be possible get sufficiently close to Spotty's ashes to satisfy the testator, although this would now involve some intrusion into domestic gardens.
3.42 If the testator wishes his body to be buried, the simplest form of instruction is:
'I wish my body to be interred in Berry Hill Cemetery, Lair number B 12'.
If a record of the relevant information has not been kept with or in a will, experience shows that an interment will often cause problems for the executors, family or solicitor immediately after a person's death has occurred. It is not uncommon for this to be the last aspect of a funeral to be finalised. Much time and effort can be involved in tracing the relevant lair certificate, if one exists, or family lair. Thus, if a testator has purchased a lair or there is a family lair in which the testator's body or ashes are to be interred, it is sensible for the burial ground and lair number to be recorded in the will and for the certificate, if any, to be retained with it. In the case of a family lair, it is also worthwhile for the testator to establish that there actually is space for further interments.
It is also worth mentioning the possibility of a woodland burial, when a tree is planted to mark a grave, instead of a headstone. Private burial on personally owned ground is also possible, although care and official permission is required in relation to water supplies and other health and safety issues (see para 3.48).
3.43 The testator may not wish a religious, or any other form of, service, in which cases the following form is appropriate:
'I wish my body to be cremated and my ashes scattered in a Garden of Remembrance [OR interred in Berry Hill Cemetery, Lair number B 13], but I do not wish there to be any [OR any religious] service'.
3.44 If the testator wishes a private funeral service, for example without flowers but with donations in lieu thereof to a favoured charity, the following form can be used:
'I wish my funeral service to be private and that there shall be no flowers, but that donations in lieu thereof might be made to the Scottish Society for the Prevention of Cruelty to Spotty Dogs'.
3.45 If a testator's wishes or instructions are more complicated, perhaps including such things as the hymns or readings to take place at the funeral service, or directions regarding those whom the testator would wish to be present, or even not present, it may be preferable to incorporate such instructions in a separate letter or note, which can be placed with his will.
That certainly may be advisable where the instructions are humorous or bizarre. It is highly unlikely that such instructions would invalidate the overall effect of a will (although they might throw the testator's mental capacity into doubt), but what a testator may find amusing or merely whimsical at one point in his life may not possess the same degree of humour after his death.
3.46 Whether for religious or other reasons, some testators may be opposed to either cremation or interment. In such cases it is advisable to incorporate a specific instruction to that effect, for example:
'I direct that I do not wish my body to be cremated'.
Formerly, it was unlawful to cremate the remains of any person who was known to have left a written direction to the contrary. This is no longer the case[73].
Alternatively, the testator could provide:
'I direct that I do not wish my body to be interred'.
In this case, however, it is more likely that the testator will wish to direct cremation, whether or not conjoined with an instruction that he does not wish to be buried.
3.47 Many funeral directors are able to offer a facility whereby a person can make advance arrangements and leave instructions for his or her funeral with them. These are kept by the funeral directors, who advise the customer to inform his family and solicitor accordingly.
In practice, the experience of some funeral directors suggests that such advance arrangements may not work when the time comes and that a funeral has already been organised, or has taken place, before the relevant information is found amongst the deceased's papers.
Numerous schemes, variously titled funeral planning schemes, pre-paid funeral plans, instalment funeral plans or guaranteed pre-arranged funeral plans, are available, either through the agency of funeral directors or direct from the companies which market them.
Usually the customer purchases a 'plan', either by a lump sum or in instalments, whereby funeral costs are paid up-front.
In practice, such schemes may be prone to the same potential difficulty already identified in relation to other forms of advance arrangements.
3.48 There are no statutory controls governing funeral instructions per se. Cremation procedures and crematoria are governed by the Cremation Acts of 1902 and 1952, as amended, and Cremation (Scotland) Regulations 1935 (SI 1935/247) as amended by The Civil Partnership Act 2004 (Modification of Subordinate Legislation) Order 2005 and The Registration Services (Consequential Provisions) (Scotland) Order 2006, the Cremation (Scotland) Amendment Regulations 1967 and the Cremation (Scotland) Amendment Regulations 1985/820. Burial procedures and burial grounds are regulated by the Burial Grounds (Scotland) Act 1855, as amended. The administrative control of such matters rests with local authorities, at Island, District or City Council level, under the Local Government (Scotland) Act 1973 (s 169(1)), as do council functions with regard to churchyards under the Church of Scotland (Property and Endowments) Act 1925 and Church of Scotland (Property and Endowments) Amendment Act 1933 as amended and the (Local Government (Scotland) Act 1973, s 169(2))[74].
Public health considerations also may be relevant. These will normally be the responsibility of the relevant Island, District or City councils.
In addition to these statutory controls, the law of nuisance may also regulate what is or is not permissible[75].
3.49 Subject to the controls mentioned, in practice it is usual for a testator's instructions to be followed, so far as may be practical or costs permit. However, as it is not competent for a person's body to be disposed of by their will, in that sense it is impossible to give a binding direction. Such instructions are merely expressive of a person's wish.
The whole subject of ownership of the human body and who has control over it after death is an area of great difficulty in Scots law. In particular, there is little law on who has the ultimate say in such matters and there can be no doubt that wishes expressed in a will can be of great assistance in resolving difficulties[76].
A distinction is made in law, nonetheless, between instructions merely expressive of a wish, therefore not binding, and bequests involving funeral or memorial arrangements. Although a trust purpose is valid only if it confers a beneficial interest in property on another living person, the law permits an exception by recognising as valid the provision, on a customary and rational scale, for a burial place and suitable memorial to the memory of a deceased person[77]. This has been described as a concession or indulgence shown by the law based on the 'natural and human sentiments of ordinary people who desire that there should be some memorial of themselves'[78].
What is customary or rational is a question of circumstance and degree and depends, amongst other factors, upon any other provision made for commemoration, the place selected in relation to the person commemorated, the method of commemoration and the possible extent of the cost. Thus, a direction to apply the income of a fund of £1,000 in perpetuity for the purpose of putting flowers on the grave of a deceased and her mother was held to be so extravagant that no effect could be given to it[79]. But the scale of such provision would be entirely reasonable in modern times.
Even if the direction is in the nature of a bequest the court will not approve it if it is deemed to be contrary to public policy. For example, a bequest of the whole estate for the erection of a burial vault was considered to be so extravagant as to be contrary to public policy[80].
3.50 The enforcement of funeral bequests, otherwise valid, is a separate issue. Should executors decline to implement them, in the absence of any beneficial interest, there is no-one with an interest to enforce them.
Disagreements can and do arise within families following a person's death and the question of whose wishes should prevail can present difficulties for the executors, family and solicitor. Responsibility is likely to rest with the executors, if only because the cost of disposal has to be borne by the estate under their control. However, few executors are likely to wish to ignore the deceased's instructions or family's wishes. There is not thought to be any Scottish authority indicating who may have the final say in the event of a dispute.[81]
Possible solutions exist, should a testator be particularly concerned to ensure that his instructions are implemented. The testator could leave a legacy to an individual or individuals, including the executors, conditional on the instructions being carried out. Alternatively, the testator could enter into a contract, for example with a firm of funeral directors, providing for his wishes to be implemented.
3.51 A testator may wish all or parts of his or her body to be used after death, either for medical research or transplant purposes. The present statutory provisions governing such bequests are to be found in sections 4, 5 and 6 of the Anatomy Act 1984, the Anatomy (Scotland) Regulations 2006[82] and the Human Tissue (Scotland) Act 2006[83].
The basic difference between these principal pieces of legislation is that, while the Anatomy Act controls 'anatomical examinations'[84] the Human Tissue (Scotland) Act 2006 controls the giving of directions in relation to activities involving human tissue and, specifically, 'transplantation, research, education or training and audit'[85]. The former can be carried out only in a department licensed under the Anatomy Act.
However, broadly speaking, the rules under both Acts are similar and, together, produce the following results.
3.52 Anyone may request in writing that their body or any part of it be used for anatomical examination[86]. A request of this type must be signed by the individual making the request and witnessed by an adult who is aware of the content of the writing and who also signs it. If the request is made by a person between the ages of 12 and 16, the request must be witnessed by two adults present at the same time who must certify that the individual making the request understands its effect and that he or she was not acting under undue influence.
If such a request has been made, the person lawfully in possession of the body following the death may authorise such use, unless he has reason to believe the request had been withdrawn[87]. The person or persons 'lawfully in possession' are not defined in the legislation. In theory it might include the executors, the manager or other appropriate medical staff of the hospital where the death occurs and, possibly, the spouse, civil partner or next of kin, but a better view might be that it is the person in physical possession of the body.
Thus, if the deceased has requested the use of his body or organs for medical purposes, medical staff are permitted to authorise such use on their own initiative. This authority will almost always be delegated to a transplant co-ordinator.
Otherwise, if the deceased has not requested such use, medical staff can only proceed when they have no reason to believe the family objects and the Acts require them to make 'such reasonable enquiry as may be practicable'. In the case of organs which must be removed quickly, if a family was not readily contactable medical staff probably would be entitled to deem enquiry impracticable.
In practice, it is understood that the use of organs for transplant purposes will be declined unless the deceased's wishes are known to the hospital or he or she is known to have registered his or her wishes with UK Transplant, the national organ donor register, and the deceased's relatives have been consulted and have given their consent. Therefore, and because written wishes are unlikely to be available within the appropriate time scale, it is particularly important for a person to inform relatives of this wish.
3.53 Where the whole body is used for medical purposes, a simple funeral and cremation will be carried out by the medical authorities at their expense once the anatomical examination is concluded, within a maximum permitted period of three years. Any wishes expressed by the deceased or surviving spouse or relatives must be taken into account[88].
If the person in lawful possession of the body after death has no reason to believe the permission for use of the body or specific parts of the body has been withdrawn, he may give authority for parts to be held after the examination is concluded. There is no mention in the Acts of how long such retained parts may be held[89].
Thus, testators intending to donate their bodies for medical research may wish to leave instructions regarding memorial services following death. Instructions may also be required should a testator specifically not wish parts of the body to be retained following its use.
The possibility that the bequest may not be accepted should also be borne in mind and it may therefore be desirable to incorporate funeral directions as an alternative (S2.26).
3.54 Testators wishing to donate their bodies for the purpose of anatomical examination or medical education or research may themselves have made contact with a University Medical School's Department of Anatomy. If not, it is wise to suggest that this be done. Although the exact format may differ from department to department, a form of explanatory note or 'bequest' letter will usually be issued to the applicant and a record of the application made. Once a death has occurred, usually a telephone call to the relevant department will be all that is necessary to set matters in motion.
Applicants will be advised of the desirability of notifying their next of kin, executors or lawyers that they wish their bodies to be offered for medical research purposes and anyone wishing their body to be used for medical purposes should make that wish known, preferably in writing and ideally in their will or at least in a letter or note kept with it[90]. The absolute necessity, as has already been noted earlier, is however for the spouse or family to be aware of the wish.
3.55 If donation for transplant purposes is intended, as has already been highlighted, it is desirable for a person to register their intentions with the UK Transplant organ donor register. This can be easily done online at www.uktransplant.org.uk or by calling the Organ Donor Line on 0845 60 60 400. Lawyers who may wish further information on the scheme can obtain information from UK Transplant, Communications Directorate, Fox Den Road, Stoke Gifford, Bristol, BS34 8RR (telephone 0117 975 7575, or email enquiriesuktransplant.nhs.uk).
Individuals already carrying a standard donor card (referring to the use of the kidneys, eyes, heart, liver or pancreas, for transplantation, or any part of the body for the treatment of others) are advised now to register their intentions with UK Transplant. Many organs must be removed as soon as possible after death and it is more than likely that insufficient time will be available in which to inspect a person's will following their death in order to see if it contains appropriate authority.
At the time of writing this edition of this book, proposals are under discussion for consideration of an 'opt-out' system of transplantation, as has already proved successful in the likes of Spain, in tackling an organ donor shortage. This default position would mean that, following death, organs would be removed as a matter of course and, thus, if an individual did not wish this, it would be necessary for him to make his wishes known in order to remove consent to transplantation.
Despite the existence of UK Transplant and whether or not an "opt-out" system emerges, individuals may consider it is worthwhile recording specific instructions in their wills, if only for the avoidance of doubt.
3.56 Any form of appropriate words is acceptable but it may be necessary to express whether the donation is for 'anatomical examination' or for 'transplantation, research, education or training and audit' or both. The distinction is that the donor may be quite willing to have the body used for education or research, but quite unwilling to have it, or parts, examined and then preserved, for instance as an example of a condition.
Instructions in the following form would cover all possibilities:
'I direct my executors to offer my body, or any part thereof, to any hospital or University Faculty of Medicine, for anatomical examination, for the purposes of transplantation, medical research, education or training and audit...'
If the testator wishes any part of his or her body to be made available for transplant purposes, but is opposed to the idea of it being used for anatomical examination or medical education or research, the following form may be used:
'I direct my executors to offer any part of my body for therapeutic purposes, transplantation and the treatment of others but not for anatomical examination or for the purposes of medical research, education or training and audit'
A request for a body to be used for 'transplantation, research, education or training and audit' may only authorise the release of certain parts under the Human Tissue (Scotland) Act 2006.
In the reverse case of the testator opposed to transplantation but favouring anatomical examination, medical education or research, the following form may be used:
'I direct my executors to offer my body to any hospital or University Faculty of Medicine, for the purposes of anatomical examination, medical research, education or training and audit but not for therapeutic purposes, transplantation or the treatment of others.'
In the intermediate case of a testator opposed to anatomical examination (or preservation), but favouring transplantation or research, the following, which emphasises the negative, may be used:
'I direct my executors to offer any part of my body for therapeutic purposes, transplantation, the treatment of others, or for the purposes of medical research, education or training and audit but not for anatomical examination or preservation.'
Finally, if testators have strong views against the use of their bodies for medical purposes, it would probably be as well for this to be recorded. Otherwise, as has been suggested, it is not, or may not become, impossible for others to direct such use on their own initiative.
3.57 Burial and cremation are the almost universally accepted methods of disposal of a person's body. Occasionally, unusual alternatives are promoted, such as having one's ashes shot into earth orbit, or turned into a 'diamond'. Burial at sea is marginally more common, although a licence is required for the limited number of UK territorial waters sites where this is permitted. The body must not be embalmed. Other options include the Swedish process of 'promession', which involves the body being frozen in nitrogen and then powdered to be used as a form of fertilizer, whilst the publication of 'The Humanure Handbook' promotes the ethical composting of corpses.
It is also possible to donate one's body to be used in a creative manner in anatomical exhibitions. One of the more interesting partial disposals in recent years was the donation by the splendidly named Andre Tchaikowsky of his skull to the Royal Shakespeare Company to be used in productions of Hamlet (and presumably elsewhere when required). The bequest was effective (as was the skull's appearance in a number of performances). The RSC did however have to obtain a licence from the Human Tissue Authority for its use[91].
Cryogenic suspension is also available, at least for the well-heeled, if life-deficient. This can extend to the whole body or merely the head. As technology advances, who can tell what may follow? The implications of successful cryogenic suspension on the law of succession, needless to say, remain beyond the scope of this book!
3.58 The 'living will' is not of course a testamentary document or will in the conventional sense. It is an advance directive by a competent person of that person's wishes with regard to the kind of medical treatment he may wish or not wish to receive in the event of subsequent loss of capacity to decide or communicate. A living will is concerned with medical treatment and does not deal with a person's estate. It will consist of a formal declaration requesting that life-prolonging measures be withheld in circumstances where there is no prospect of recovery. In a sense, it may be considered by some to be a passive form of euthanasia.
There is neither space for, nor is this book concerned with, examination of the many legal, moral and medical issues involved. However, the existence of living wills, otherwise variously termed 'advance directives', 'advance declarations', 'advance health care directives', and 'treatment disposals' cannot be ignored. There is an increasing public awareness of and interest in them, and a number of cases[92] have emerged over the last few years where the courts have accepted these as being valid expression of an individual's last living wishes.
The reasons for this awareness and interest are many, but are likely to include an increased expectation of life, the ability of modern medical technology to keep people alive, increasing numbers of incurably ill and incapacitated persons, many of them elderly, and the incidence of HIV/AIDS and associated illnesses. Individuals may also wish to specify and make known their end of life treatment decisions in order that family are not left having to make difficult choices.
The concept appears to have originated in the United States, where statutory recognition of living wills has existed since the Patient Self-Determination Act of 1990. In Europe, for many years Holland has been at the forefront of developments in the field of euthanasia, and in 2002 the country was the first to legalise giving terminally ill patients the right to end their lives.
Over the past 50 years there have been various attempts to introduce legislation legalising euthanasia in the United Kingdom. Considerable media attention focused on the 1993 case of Airedale NHS Trust v Bland[93], in which Tony Bland, a victim of the Hillsborough football stadium disaster, had been in a persistent vegetative state, and a successful application was made to the High Court and House of Lords to end life-prolonging treatment for him. Following the case, a Parliamentary Select Committee[94] on medical ethics was set up, its remit extending to euthanasia and the withholding of medical treatment. Yet in 2006 the Patient (Assisted Dying) Bill was rejected by the House of Lords for a second time.
Nonetheless, there have been recent changes to, and some clarification of, the legal standing of living wills in the UK. The Mental Capacity Act 2005 forms the legal basis for advance directives in England and Wales. Section 26 of that Act came into force on 1 October 2007[95] and provides that a person is liable if they carry out or continue treatment when he or she is satisfied that an advance directive exists which is valid and applicable to the treatment. However, there have been practical difficulties with regard to the application of that legislation and, at the time of writing this book, it is understood that the legislation may be reviewed.
Currently, however, although there are no such specific guidelines as to the structure and effect of living wills in Scotland, the Mental Health (Care and Treatment) (Scotland) Act 2003[96] and related Guide to Advance Statements do recognise such "advance statements" if a person suffers mental illness including dementia, a learning disability or a personality disorder"[97], rather than those who lose capacity as a result of degenerative diseases. In the guide[98], published in 2005 by the Scottish Executive, it is suggested that the guidance on advance directives "may be of interest to others". The recent legislation across the UK jurisdictions would suggest that living wills are becoming an accepted feature in some patient's lives, supported by the judgements in the cases below.
3.59 In Re AK (Adult Patient) (Medical Treatment: Consent)[99], the Family Division of the High Court held that the express wishes made by a 19 year old with capacity as to his preferences on medical intervention during the final stages of his motor neurone disease were valid. The court concluded that to remove medical intervention with the inevitable result that the young man would die was not an unlawful termination of life, but rather it would be unlawful to treat an adult against his wishes where they had been made prospectively whilst he had capacity.
Similarly, the case of W Healthcare NHS Trust v H[100] is an instance where the Court of Appeal would have accepted a patient's requests as to medical intervention had she made an advance directive before she became incapax. Lord Justice Brooke decided that in the absence of the patient's advance directive, he could not accept her family's request that she did not wish to continue to be fed. The patient was unable to make an informed decision at this particular stage of her illness and therefore her artificial feeding was continued.
In R (on the application of Burke) v General Medical Council[101], Lord Phillips attached importance to an advance directive in terms of expressing a patient's wishes as to medical treatment. Conversely, in the case of X NHS Trust v T (Adult Patient: Refusal of Medical Treatment)[102], a self-harmer had signed an advance directive to the effect she did not wish to receive blood transfusions, even when it was established that were she to self-inflict serious harm, she might die without receiving the appropriate transfusions. In this instance the court did not allow her advance directive to take effect, as they established that she was of unsound mind. This suggests that it would have been willing to accept the request of her advance directive, were she not of unsound mind.
3.60 Prior to the introduction of The Mental Capacity Act 2005 (and indeed the Mental Health (Care and Treatment) (Scotland) Act 2003), from the English solicitor's point of view concerns had been expressed that framing a living will for a client might have been aiding and abetting suicide, a criminal offence under section 1 of the Suicide Act 1961. The Crown Prosecution Service, however, indicated to the English Law Society's Mental Health Sub-Committee that it would have been unlikely a solicitor instructed to draw up a living will – merely setting out an exhortation as to what should occur given certain physical or mental incapacity – would have been committing an offence under the Act[103]. This has been confirmed by the recent legislation.
3.61 From the medical standpoint, the BMA's most recent statement on Advance Directives (April 2007) fully supports advance directives as representing a patient's settled wishes regarding treatment choices when the patient may no longer be able to express a competent view. The BMA has for some years now (and indeed prior to the introduction of the Acts) asserted that a patient has, through an advance directive, a legal right to decline specific treatment, including life-prolonging treatment.
Useful to note are the criteria highlighted as making an advance statement binding under England's Mental Capacity Act 2005, although there is no reference to the Scottish Act. The criteria that the BMA note relevant to the English Act are that the person making the advance directive was 18 years or older at the time it was made, that the specific treatments (and their circumstances) to be refused are listed, that the person making the directive has not withdrawn the decision at a time when they still had capacity to do so, that the person making the directive has not subsequently appointed an attorney to make specified decisions and that the person making the directive had not done anything inconsistent with the directive remaining a fixed decision.
3.62 For the sake of convenience, there follows an example of a short style of living will, which the authors themselves have used for a number of years.
The authors consider that, when consulted by a client about preparation of a living will, it would be desirable for the solicitor to advise the client to discuss the matter with his doctor. This should permit the client not only to address the medical issues involved, but also to establish if the doctor has personal or conscientious objections to accepting the document or making its existence known at the appropriate time or times. As the effectiveness of a living will may depend upon the declarant's capacity at the time of signing and his decision being an informed one, a note in the doctor's file that discussion has taken place may also be helpful. If relevant, a pregnancy waiver might be included.
Once a living will has been executed, the client should be advised to retain it in a safe place, preferably placing it, or at least a copy, on his medical file and to inform his family or close friends of its existence and location. As an additional safeguard, the client may wish to carry a note so as to alert third parties to the fact that he has signed a living will. EXIT (see para 3.63), for example, can provide a plastic emergency card for this purpose.
3.63 Useful sources of material on living wills include:-
http://www.clickdocs.co.uk/living-wills.htm
http://www.dignityindying.org.uk
For EXIT see – http://www.euthanasia.cc
I, A (design) declare as follows
1 Wishes
I desire to record my wishes in the event of my becoming unable to communicate or to take part effectively in decisions regarding my medical treatment as a result of serious physical illness or mental incapacity.
2 Limitation of medical treatment
In the event that
2.1 I have a physical illness from which, in the opinion of two independent physicians (one a consultant), there is no reasonable prospect of recovery and it is so serious that my life is nearing its end; or
2.2 my mental faculties have become permanently impaired so severely that I am incapable of understanding what is happening to me with, in the opinion of two independent physicians (one a consultant), no reasonable prospect of improvement and I have a physical illness; or
2.3 I have become permanently unconscious with, in the opinion of two independent physicians (one a consultant), no reasonable prospect of regaining consciousness;
It is my request that I should not be subjected to any medical intervention or treatment aimed at prolonging my life by artificial means and that any medical treatment should be confined to the relief of any distressing symptoms (including any caused by lack of food or fluid) and to keeping me comfortable and free from pain, even if such treatment may have the incidental effect of shortening my life.
3 Views of others
3.1 In the event of my becoming incapable of giving or withholding consent to any medical treatment or procedure, I would wish consideration to be given to the views of [ ] either as to how he/she may believe I would have taken a decision or using his/her own best judgement taking into account my wishes as expressed in 2 above.
3.2 If it became appropriate or necessary for the Court to be petitioned to appoint a person as my welfare guardian I would wish the said [ ] to be so appointed, whom failing such other person as may be deemed by the Court a suitable person, and that such guardian in exercise of his or her powers should give or withhold consent on my behalf to any medical treatment or procedure similarly taking into account my wishes as expressed in 2 above.
4 No liability on medical attendants
I absolve my medical attendants from any civil liability as a result of their actions or omissions in response to and in terms of this declaration.
5 Discussion with doctor
I have/have not discussed this declaration with my doctor [insert doctor's name, address and telephone number].
6 Revocable declaration
This declaration is revocable by me at any time, before a witness, in writing or orally, but otherwise it should be taken to represent my continuing directions.
7 Testing clause
This document is executed as follows:
signature of witness |
signature of A |
||
full name of witness (print) |
|||
date of signing |
|||
address of witness |
place of signing |
||
[1] Apart from S12 as to which see para 2.82.
[2] Apart from S12 as to which see para 2.83.
[3] See Succession (Scotland) Act 1964, s 30 together with the bequest contained in s 2.12 and the section on special destinations at paras 2.29–2.32.
[4] Family Law (Scotland) Act 2006, s 19 and Civil Partnership Act 2004, s 124A.
[5] For a recent attempt at reduction on these grounds, see Hutchison v Graham's Executrix [2006] CSOH 15.
[6] Paterson v Paterson (1893) 20 R 484; McLachlan v Seton's Trustees 1937 SC 206.
[7] Lauder v Briggs 1999 SC 453.
[8] Bruce's Judicial Factor v Lord Advocate 1969 SC 296; Scott's Judicial Factor v Johnson 1971 SLT (Notes) 41.
[9] Knox's Trustees v Knox 1907 SC 1123; Greenan v Courtney 2007 SLT 355.
[10] On this conditio, see further para 6.138.
[11] Couper's Judicial Factor v Valentine 1976 SLT 83.
[12] Pirie's Trustees v Pirie 1962 SC 43.
[13] Corrance's Trustee v Glen (1903) 5 F 777.
[14] Wood's Trustees v Findlay 1909 1 SLT 156; Thomson's Trustees v Lockhart 1930 SC 674.
[15] See for an example of possible problems Barrowman, Petitioner 2003 SLT 818.
[16] Baillie's Executor v Baillie (1899) 1 F 974; Garden's Executor v More 1913 SC 285.
[17] 25 Stair Memorial Encyclopaedia, para 1107.
[18] Executors (Scotland) Act 1900, s 3.
[19] Ibid, s 2.
[20] See generally Wilson & Duncan, paras 31.08–31.13; Halliday I, paras 2.84–2.87; Macdonald, paras 13.06–13.08.
[21] See paras 6.47–6.55 and 6.151–152 for a fuller treatment of this topic.
[22] See paras 6.56–6.64 and 7.3–7.36.
[23] See paras 5.62–5.120 and 7.3–7.36; and S5.2, S6.2, S7.2, S9.2, S10.2.
[24] See para 3.22.
[25] See para 3.22.
[26] Wilson & Duncan paras 31.08–31.13.
[27] McLaren II, para 1618; Wilson & Duncan paras 18.01–18.26, 32.30 and 32.62.
[28] Hill v City of Glasgow Bank (1879) 7 R 68.
[29] See Currie, paras 8.56–8.61.
[30] Age of Legal Capacity (Scotland) Act 1991, s 1(1) and s 9(f).
[31] Currie paras 5.13–5.15; Wilson & Duncan para 18.37.
[32] The appointment could also be of a Limited Liability Partnership, which similarly has a separate legal persona.
[33] Ommanney, Petitioner 1966 SLT (Notes 13).
[34] For more detailed information concerning corporate appointments see Wilson & Duncan paras 18.21–18.25 and 32.30 and Currie para 5.16.
[35] Currie paras 5.117–5.123 and 2.67; Wilson & Duncan paras 18.40–18.56.
[36] See for example S2.4.
[37] See paras 3.15; 3.23; 6.173.
[38] Scott v Lunn (1908) 15 SLT 1045.
[39] Currie para 1.40; Norrie & Scobbie pp 68 and 98.
[40] Trusts (Scotland) Act 1921, s 3(c).
[41] Wilson & Duncan paras 18.39 and 22.02–22.03 and 31.20–31.23; and Currie para 1.36.
[42] Maclachlan's Trustees v Gingold 1928 SLT 409; Robbie's Judicial Factor v Macrae (1893) 20 R 358; Angus' Executrix v Batchan's Trustees 1949 SC 335; Russell's Executor v Balden 1989 SLT 177.
[43] Ommanney Petitioner 1966 SLT (Notes) 13 and see para 3.14. On this area in general, see Norrie & Scobbie, pp 67–70.
[44] See Menzies, p 60, which suggested, for the avoidance of expense and delay of administration, that the number should only exceptionally be increased beyond the number originally stipulated.
[45] Welsh's Trustees v Welsh (1871) 10 M 16.
[46] Balgowan Trustees, Petitioners 1999 SLT 817.
[47] Trusts (Scotland) Act 1921, s 3(a).
[48] Kennedy Petitioner 1983 SLT (Sh Ct) 10.
[49] Trusts (Scotland) Act 1921, s 3(1).
[50] Ibid, s 28.
[51] See the Trusts (Scotland) Act, s 3(2); and paras 3.15, 3.18, 3.24.
[52] See also Wilson & Duncan, paras 22.15–22.35 and 31.25.
[53] See for examples Johnston v Macfarlane 1985 SLT 339; Inglis v Inglis 1983 SLT 437; Clark v Clark's Executors 1989 SLT 665.
[54] Johnston v Macfarlane 1985 SLT 339; Inglis v Inglis 1983 SLT 437; Clark v Clark's Executors 1989 SLT 665.
[55] In connection with legacies to solicitors, see paras 3.15 and 6.174–6.181; see also Norrie & Scobbie, pp 130–6.
[56] Currie, paras 5.28–5.32.
[57] Compare S4.2.
[58] See Currie paras 5.33–5.35. On conditional legacies, see paras 5.37–5.51; see also Currie paras 5.86–5.87.
[59] Wilson & Duncan paras 18.38–18.39; Currie paras 5.25–5.27; Norrie & Scobbie, pp 97–8; Elder, p 13; 24 Stair Memorial Encyclopaedia para 140.
[60] See Currie paras 5.36–5.38.
[61] See Currie paras 5.39–5.43.
[62] Duff's Trustees v Scripture Readers (1862) 24 D 552; Waddell's Trustees v Crawford 1926 SC 654.
[63] May's Trustees v Paul (1900) 2 F 657.
[64] Waddell's Trustees, above.
[65] Baird's Trustees v Duncanson (1892) 19 R 1045; Kearon v Thomson's Trustees 1949 SC 287.
[66] Greig v Merchant Company of Edinburgh 1921 SC 76.
[67] Inglis' Trustees v Breen (1891) 18 R 487.
[68] Inheritance Tax Act 1984, s 211 and see Cowie's Trustees, Petitioners 1982 SLT 326.
[69] Ibid, s 38(3).
[70] Ibid, s 38(4), (5).
[71] Ibid, s 39A.
[72] See for examples Lockhart v Harker & Others, Re Benham's Will Trusts [1995] STC 210; Re Ratcliffe, Deceased [1999] STC 262.
[73] The Cremation (Scotland) Amendment Regulations 1967.
[74] See Stair Memorial Encyclopaedia, Burial and Cremation, para 524.
[75] See, for example, Paterson v Beattie (1845) 7 D 561.
[76] See N Whitty, "Rights of personality, property rights and the human body in Scots law" (2005) 9 Edin Law Review 194; Evans v McInytre Aberdeen Sheriff Court, 28 March 1980, unreported but dealt with in an article by D Nichols 2005 Fam Law Bulletin 1 and in R Paisley & D Cusine (Eds), Unreported Cases from the Sheriff Courts (W Green, 2000), pp 49–58.
[77] McCaig v Glasgow University 1907 SC 231 at 244.
[78] Lindsay's Executor v Forsyth 1940 SC 568 per at 572 per the Lord Justice Clerk (Aitchison).
[79] Lindsay's Executor v Forsyth, above.
[80] Mackintosh's Judicial Factor v Lord Advocate 1935 SC 406. Further examples of the attitude adopted by the courts to such bequests may be found in McCaig v University of Glasgow, above and McCaig's Trustees v Kirk Session of United Free Church of Lismore 1915 SC 426.
[81] But see the authorities cited at fn 2 on the immediately preceeding page.
[82] SI 2006/336.
[83] Human Tissue (Scotland) Act 2006, Part 1, s 3.
[84] Anatomy Act 1984, s 1(1), modified by the Human Tissue (Scotland) Act 2006, Part 5, s 53(2).
[85] Human Tissue (Scotland) Act 2006, Part 1, s (3)1.
[86] Anatomy Act 1984, s 4(1), as amended by the Human Tissue (Scotland) Act 2006.
[87] Anatomy Act 1984, s 4(2), as amended.
[88] Anatomy (Scotland) Regulations 2006, SI 2006/336, reg 6.
[89] Anatomy Act 1984, s 6(3), substituted by the Human Tissue (Scotland) Act 2006, s 53(8).
[90] See para 3.62.
[91] The Times, 26 November 2008.
[92] See para 3.59.
[93] [1993] 1 All ER 821.
[94] House of Lords Papers, Session 1993–94, Report of the Select Committee on Medical Ethics.
[95] Mental Capacity Act 2005 (Commencement No. 2) Order 2007/1897, Art 2(1)(a).
[96] This legislation defines the duties, nature and powers of the individuals and organisations involved in mental health law and how they should give effect to the principles of the legislation. It sets out the circumstances in which a person with a mental disorder may receive treatment and/or be detained on a compulsory basis, and the procedures which have to be followed. The legislation makes provisions for how a person with a mental disorder may be dealt with by the criminal justice system, and how they are cared for subsequently. The legislation also gives additional rights to a person with a mental disorder and puts safeguards in place.
[97] 'The New Mental Health Act – A Guide to Advance Statements', p 1 (ISBN 0 7559 4733 9, available from www.scotland.gov.uk).
[98] Ibid.
[99] AK (Adult Patient)(Medical Treatment: Consent), Re [2001] 1 FLR 129.
[100] W Healthcare NHS Trust v H [2005] 1 WLR 834.
[101] R. (on the application of Burke) v General Medical Council [2005] QB 273.
[102] X NHS Trust v T (Adult Patient: Refusal of Medical Treatment) [2004] 1 All ER 387.
[103] Law Society Gazette 1991, 88(26), 20, 23.