Will clause allowing daughter to live indefinitely in home inherited by four siblings not ineffective

Valerie Scott-May and Maureen Currier argued that a clause of the will giving their sister Shona Scott-May an indefinite right of occupancy in the deceased’s home was ineffective due to an earlier clause of the will giving them each, along with another sister not involved in the action, an equal share of the residue of the estate, including pro indiviso ownership of the property.

The case was heard by Sheriff David Hall. McLeod, advocate, appeared for the pursuers and Garrioch, solicitor advocate, for the defender.

Intended to continue

Under clause 4 of the deceased’s will, dated 21 April 2004, the deceased’s trustees were to make over the residue of her estate to her three daughters, divided equally among them. However, clause 5 specifically granted the defender a right to reside for as long as she wished, rent-free, in her home, Croft Douglas, which was agreed to form part of the residue of the estate.

Prior to her death, the deceased operated Croft Douglas as a croft in partnership with the defender, a business that the defender carried on after her death. There was no subsequent reference to the subjects in the deceased’s Will but in a codicil dated 11 May 2004 the deceased bequeathed to the defender, among other things, the whole stock, crop, unexhausted manures, seeds, fertilisers and other farm stores, farm vehicles, machinery and implements and all other moveables used in the business of the partnership.

The pursuers contended that the effect of clause 4 of the will rendered the purported right of occupancy in clause 5 ineffective. The construction of the will contended for by the defender was repugnant to the pursuers’ interests as heritable proprietors of the subjects. In the absence of a liferent or trust, clause 5 was not an expressed condition but was at best a wish.

For the defender it was submitted that, in the context of the codicil, the bequest would be pointless unless the deceased intended the defender to continue to reside in Croft Douglas and operate it was a croft. The factual matrix in play at the time of the Will entirely supported an interpretation that the deceased wanted the defender to continue to reside at Croft Douglas for as long as she wished to do so.

Condition of the gift

In his decision, Sheriff Hall said of the issue of repugnancy: “Repugnancy is not engaged in this case. Clause 5 does not impose conditions that impact on the right of ownership. It modifies or abridges the gift by specifying that it comes with a condition, that condition being the Defender’s right of occupation.”

He continued: “The entitlement was a qualification or condition of the gift. It has an impact on the value of the gift as opposed to rights. The price at which the property can be sold will likely be reduced as a consequence of the Defender’s entitlement. Any such reduction in value is not a relevant consideration to take it into account, it would confuse values with rights.”

Addressing whether the wording of the will was clear, the sheriff said: “It is clear to me that if I placed myself in the armchair of the testator the wording of the Will and the facts in place at the time of the will cause me to conclude that the deceased wanted the Defender to continue to reside at the subjects for as long as she so wished.”

He concluded: “Clause 5 does not impose conditions that impact on the right of ownership — it modifies the gift by specifying it comes with a condition, the defender’s right of occupation. Cochrane’s Executrix v Cochrane (1947) states that a provision which modifies or abridges the gift is not repugnant. I conclude in this case the clear scheme of the Will was that the beneficiaries would obtain ownership of the subjects subject to the defender’s entitlement to reside there, that entitlement being a qualification of the gift.”

The sheriff therefore refused to grant declarator that clause 5 was ineffective. The case was then assigned a procedural hearing to address further matters.