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A will and testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Intestacy is the condition of the estate of a person who dies without a legally valid will, resulting in the distribution of their estate under statutory intestacy laws rather than by their expressed wishes. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the "intestate estate". Intestacy law, also referred to as the law of descent and distribution, which vary by jurisdiction, refers to the body of law, establish a hierarchy for inheritance, typically prioritizing close relatives such as spouses, children, and then extended family members and determines who is entitled to the property from the estate under the rules of inheritance.
In English common law, fee tail or entail, is a form of trust, established by deed or settlement, that restricts the sale or inheritance of an estate in real property and prevents that property from being sold, devised by will, or otherwise alienated by the tenant-in-possession, and instead causes it to pass automatically, by operation of law, to an heir determined by the settlement deed. The terms fee tail and tailzie are from Medieval Latin feodum talliatum, which means "cut(-short) fee". Fee tail deeds are in contrast to "fee simple" deeds, possessors of which have an unrestricted title to the property, and are empowered to bequeath or dispose of it as they wish. Equivalent legal concepts exist or formerly existed in many other European countries and elsewhere; in Scots law tailzie was codified in the Entail Act 1685.
In civil law and Roman law, the legitime, also known as a forced share or legal right share, of a decedent's estate is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause. The word comes from French héritier légitime, meaning "rightful heir."
Usufruct is a limited real right found in civil law and mixed jurisdictions that unites the two property interests of usus and fructus:
Seisin is a legal concept that denotes the right to legal possession of a thing, usually a fiefdom, fee, or an estate in land. It is similar, but legally separate from the idea of ownership.
Dower is a provision accorded traditionally by a husband or his family, to a wife for her support should she become widowed. It was settled on the bride by agreement at the time of the wedding, or as provided by law.
Courtesy tenure is the legal term denoting the life interest which a widower may claim in the lands of his deceased wife, under certain conditions. The tenure relates only to those lands of which his wife was in her lifetime actually seised and not therefore to an estate of inheritance.
Ultimus haeres is a concept in Scots law where if a person in Scotland who dies without leaving a will and has no blood relative who can be easily traced, the estate is claimed by the King's and Lord Treasurer's Remembrancer on behalf of the Crown. It is one of two rights to ownerless property that the Crown possess, the others being bona vacantia.
Forced heirship is a form of testate partible inheritance which mandates how the deceased's estate is to be disposed and which tends to guarantee an inheritance for family of the deceased.
English property law is the law of acquisition, sharing and protection of valuable assets in England and Wales. While part of the United Kingdom, many elements of Scots property law are different. In England, property law encompasses four main topics:
The inter regalia are the rights falling to the Crown in Scots Property law. The term derives from Latin inter (among) and regalia.
Scots property law governs the rules relating to property found in the legal jurisdiction of Scotland.
The Regiam Majestatem is the earliest surviving work giving a comprehensive digest of the Law of Scotland. The name of the document is derived from its first two words. It consists of four books, treating (1) civil actions and jurisdictions, (2) judgments and executions, (3) contracts, and (4) crimes.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
The missives of sale, in Scots property law, are a series of formal letters between the two parties, the Buyer and the Seller, containing the contract of sale for the transfer of corporeal heritable property (land) in Scotland. The term 'land' in this article includes buildings and other structures upon land.
A disposition in Scots law is a formal deed transferring ownership of corporeal heritable property. It acts as the conveyancing stage as the second of three stages required in order to voluntarily transfer ownership of land in Scotland. The three stages are:
- The Contractual Stage
- The Conveyancing Stage
- The Registration Stage
Accession is a method of original acquisition of property under Scots property law. It operates to allow property to merge with another object, either moveable or heritable. Accession derives from the Roman-law concept of the same name. Other jurisdictions employ similar rules. The leading case in this area is said to be Brand's Trustees v Brand's Trustees (1876) 3 R (HL) 16.
Prescription in Scots law allows the creation or extinction of personal and real rights. There are two forms of prescription: (1) positive prescription, which creates certain real rights, and (2) negative prescription, which extinguishes both personal and real rights. Prescription is different from limitation, which prevents the raising of court proceedings or litigation in relation to civil law matters in Scottish courts, primarily affecting personal injury claims arising from delict as these are exempt from prescription. The terms prescription and limitation are used in other jurisdictions to describe similar rules, mainly due to shared Roman law and Civil law heritage.
Possession in Scots law occurs when an individual physically holds property with the intent to use it. Possession is traditionally viewed as a state of fact, rather than real right and is not the same concept as ownership in Scots law. It is now said that certain possessors may additionally have the separate real right of ius possidendi. Like much of Scots property law, the principles of the law of possession mainly derive from Roman law.
References
- 1 2 One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Jus Relictae". Encyclopædia Britannica . Vol. 15 (11th ed.). Cambridge University Press. p. 593.
- 1 2 Vernon Palmer, Elspeth Reid, ed. (2009). Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland. Edinburgh University Press. p. 112. ISBN 9780748638864.
- ↑ "Succession (Scotland) Act 1964 Part II Section 10". legislation.gov.uk. Retrieved 2 December 2017.
- ↑ Bhatia, K. L. (2013). Textbook on Legal Language and Legal Writing. Universal Law Publishing Co Ltd. p. 224. ISBN 9789350353233.
- Bell, William (1861). Dictionary and Digest, Law of Scotland, with Short Explanations of the most Ordinary English Law Terms (Revised and Corrected with Numerous Additions by George Ross ed.). Edinburgh: Bell & Bradfute.
- Shumaker, Walter A.; George Foster Longsdorf (1922). The Cyclopedic Law Dictionary (Second Edition by James C. Cahill ed.). Chicago: Callaghan and Company.
- "Scottish Language Dictionaries". Archived from the original on 20 February 2008. Retrieved 1 March 2008.
- "Legal rights: introduction". HM Revenue and Customs . Retrieved 28 November 2007.
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