carried, and could not be carried by any testament whatsoever. The moment that Disposition was mutually delivered, as it was by the mere fact of taking the destination as between two people, I do not think this destination could have been altered except by joint consent of the spouses.” Counsel for the Defenders had suggested that Trustees was no longer good law. However, Perrett’s Lord Jones rejected that submission. I have very recently had to give an opinion on almost identical circumstances. In that Opinion I also made reference to the case of Marshall Executor 1986 SLT –v- Marshall’s 49. In that case, there was a consideration of two points. The first was that the house had been purchased jointly by a couple who were not married at the time of the purchase. They became married. However, by an undated holograph Will executed by the husband shortly prior to his death, he provided that:- share of the house at 32 Laggan Road, Glasgow or wherever it may be at the time of my “My death be transferred to my daughter.” After her death, the wife raised an Action of Declarator against the Executor, husband’s husband’s requesting an order to the effect that she was the heritable proprietor of her one half pro husband’s indiviso share in the property in terms of a special destination. Lord Jauncey had no difficulty in holding that the special destination had been contractual in nature and therefore could not be unilaterally revoked by the husband in terms of the mortis causa deed. Lord Jauncey, however, also went onto consider a further point. The wife had argued that, even if the Will had been capable of revoking the special destination it would not have been so evacuated given the specific terms of her Will. Lord Jauncey referred to the case of husband’s Stirling’s Trustees Stirling 1977 SC 139 in which, in considering the provisions of Section 30:- –v- Lord President made it clear at page 232 that means exactly what it “the “specific reference” says. There is accordingly no room for a liberal, extended construction of the section as was urged upon me by the Defenders. The relevant passage in the Will does not deceased’s contain a specific reference to the special destination from which it follows that it could not take effect to evacuate it.”
carried, and could not be carried by any testament whatsoever. The moment that Disposition was mutually delivered, as it was by the mere fact of taking the destination as between two people, I do not think this destination could have been altered except by joint consent of the spouses.” Counsel for the Defenders had suggested that Perrett’s Trustees was no longer good law. However, Lord Jones rejected that submission. I have very recently had to give an opinion on almost identical circumstances. In that Opinion I also made reference to the case of Marshall –v- Marshall’s Executor 1986 SLT 49. In that case, there was a consideration of two points. The first was that the house had been purchased jointly by a couple who were not married at the time of the purchase. They became married. However, by an undated holograph Will executed by the husband shortly prior to his death, he provided that:- “My share of the house at 32 Laggan Road, Glasgow or wherever it may be at the time of my death be transferred to my daughter.” After her husband’s death, the wife raised an Action of Declarator against the husband’s Executor, requesting an order to the effect that she was the heritable proprietor of her husband’s one half pro indiviso share in the property in terms of a special destination. Lord Jauncey had no difficulty in holding that the special destination had been contractual in nature and therefore could not be unilaterally revoked by the husband in terms of the mortis causa deed. Lord Jauncey, however, also went onto consider a further point. The wife had argued that, even if the Will had been capable of revoking the special destination it would not have been so evacuated given the specific terms of her husband’s Will. Lord Jauncey referred to the case of Stirling’s Trustees –v- Stirling 1977 SC 139 in which, in considering the provisions of Section 30:- “the Lord President made it clear at page 232 that “specific reference” means exactly what it says. There is accordingly no room for a liberal, extended construction of the section as was urged upon me by the Defenders. The relevant passage in the deceased’s Will does not contain a specific reference to the special destination from which it follows that it could not take effect to evacuate it.”
25.10.18_Survivorship_Destinations_John_Kerrigan.docx