Evetts v Galbraith's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 12 May 1970 |
| Docket Number | No. 19. |
| Date | 12 May 1970 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Trust—Variation—Antenuptial marriage contract—Wife's fund—Destination-over to collaterals on failure of issue—Whether contractual or testamentary.
Process—Petition—Service—Trust—Variation—Antenuptial marriage contract—Wife's fund—Destination-over to collaterals on failure of issue of marriage—Whether service on collaterals necessary.
An antenuptial marriage contract provided that the wife's fund should be used to pay alimentary liferents to the spouses in sundry events, and that on the death of the wife the capital of the fund should be held for, and ultimately paid to or settled on, her children, the issue of any predeceasing child taking their parent's share. The wife was given a power of appointment over the children's shares. The contract further provided that, in the event of failure of children and issue of children, the capital of the fund should be paid to the two brothers of the wife or to their respective issue per stirpes, or to the survivor of the brothers if the predeceaser died without issue, and, failing both brothers without issue, to her sister and her issue.
In a petition under sec. 1 (1) of the Trusts (Scotland) Act, 1961, for approval of an arrangement varying the trust purposes relating to the wife's fund,—
Held (1) that the provisions in favour of the collaterals and their issue were testamentary in character and therefore revocable by the wife, and consequently (2) that service of the petition on the collaterals and their issue was unnecessary, their consent to the proposed arrangement not being required.
Mrs Norah Jean Crabbe or Galbraith or Evetts and Sheila Patricia Galbraith, her only child, who was born on 11th July 1925, presented a petition in terms of section 1 of the Trusts (Scotland) Act, 1961,1 for approval and authorisation of an arrangement varying the purposes of a trust created by an antenuptial contract of marriage entered into in November 1921 between Mrs Evetts and her first husband, John Wilson Seton Galbraith, from whom she was divorced in 1929 and who died on 6th January 1970.
Prior to her marriage to Mr Galbraith Mrs Evetts conveyed to the trustees acting under the marriage contract certain estate to which she was or might become entitled (referred to in this report as "the wife's fund"), to be held by them for the following purposes:—"(First) For payment to the said Norah Jean Crabbe during her lifetime as her separate estate, and as an alimentary provision unassignable by her and unattachable by the diligence of her creditors, of the free yearly income or proceeds of the said estate: (Second) In the event of the said Norah Jean Crabbe predeceasing her said intended husband, for payment to him thereafter of the free yearly income or proceeds of twelve thousand pounds of the said estate during all the days of his life, but so long only as he shall not enter into another marriage, which liferent provision is hereby declared to be strictly alimentary, unassignable by him and unattachable by the diligence of his creditors…(Third) In the event of the said Norah Jean Crabbe surviving her said intended husband and entering into another marriage it...
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