The Roman and Civilian origins of the conditio si testator sine liberis decesserit in Scots Law

Date01 January 2015
DOI10.3366/elr.2015.0249
Published date01 January 2015
Pages1-35
AuthorRoderick R M Paisley
INTRODUCTION

This article will examine and evaluate the Roman and Civilian origins of the Scottish rule of succession known as the conditio si testator sine liberis decesserit. This rule may lead to the reduction of a will if an unexpected child is born after the testator makes his will. The emphasis will be on the form of the rule that is implied by law, or, as the Civilists would state it, “a iure tradita”,1

E.g. the Italian jurist Julius Clarus (1525–1575), Opera Omnia (1616) book 4, § Donatio Quaestio XXII, 90, introductory para.

where the will itself is silent. As the legally implied rule probably seeks to emulate the express provision of a testator, the article will start by setting out the position as regards express testamentary provision. The original Roman source of the rule will be identified. Thereafter the article will examine and comment upon the use of Roman and Civilian sources in the lengthy period of development of the Scottish rule up to the start of the twentieth century. That is when the Scottish rule had received much of its modern form. This article therefore forms a basis for the understanding of modern Scots law. Original Latin texts are quoted in the text. Except where otherwise stated, the translations provided are those of the present writer
THE TESTATOR'S AFTERBORN CHILDREN Express provision

Scots law has accepted the long established Roman and Civilian position that a testator may make an express statement in his will to the effect that all of his existing testamentary provision, or an identified part of it, is not to have effect on his death if a child is born to him2

Or to another identified party.

subsequent to the making of that will.3

Ogilvie v Ogilvie (1694) 4 BS 141; Bell, Prin 4th and 10th edns, § 1782. The authority cited there is not directly in point but is analogous: Robertson v Moderator and Clerks of the General Assembly (1833) 11 S 297 (termination of vested trust provision); Ballantyne v Scot (1687) Mor 2953; Dumfermling v Callendar (1676) Mor 2941 and 4078; Watt v Forrest (1702) Mor 2954. Cf Craig, Ius Feudale 2.5.11 translated by Lord Clyde, The Jus Feudale vol I, 450 (heritable destinations); Lord Curriehill v Currie's Exrs (1624) Mor 2937.

Traditionally such a child is known as a post natus4

E.g. Stevenson's Trs v Stevenson 1932 SC 657 at 669 and 670 per Lord Ormidale and at 674 in the interlocutor of the Court; C de B Murray, Law of Wills (1945) 52.

and this is known as a condition si sine liberis decesserit.5

Bell, Prin 4th and 10th edns, § 1782.

Depending on the wording employed, the condition may also require that the child survive the death of the testator before the relevant part of the will has no effect.6

Linlithgow v Caircross (1605) Mor 2937 (dowry); Dumfermling; Oswald v Boyd (1680) Mor 2948 (tocher); Royston and Fraserdale v Haliburton (1715) Mor 2955.

The condition may be tailored largely as the testator sees fit and may, for example, require the birth and survival of a number of children. In any of such cases the relevant clause may be framed as a clause of conditional revocation or as a resolutive provision.7

See Wedderburn v Wedderburn (1666) Mor 6587 applying D 35.1.19 (Ulpian).

It remains open to question whether a testator may render all or part of his testamentary provision subject to a condition that it will have effect unless an identified surviving party confirms, either before or after the testator's death, that it is to have no effect. It similarly remains open to question whether the testator may seek to give the identified party this right to veto a bequest only in limited circumstances, such as where the testator dies leaving a surviving child.

Where the identified party is the beneficiary, a provision indicating the testamentary provision will lapse if, after the testator's death, the beneficiary does not wish to accept it does no more than mirror the position implied by law, as no beneficiary is obliged to accept a gift: invito beneficium non datur.8

D 50.17.69 (Paul); D 50.17.156(4) (Ulpian): quod cuique pro eo praestatur, invito non tribuitur; Halkerston, Collection of Latin Maxims & Rules (1823) 70. See the principle applied in Lord Advocate v Gordon (1895) 22R 639 at 643 per Lord McLaren.

It is possible that a third party beneficiary may voluntarily decline a bequest9

Alternatively, he could accept the bequest and assign the personal right to receive it to the child; or he could accept the bequest, take delivery of it and donate it to the child, thus transferring the real right in the thing bequeathed directly to the child. Both give the beneficiary more control over who benefits.

where he realises that such a declinature will lead to an increased provision for a surviving child of the testator. In a passage from a sermon later to be incorporated into the Decretum Gratiani (ca 1140)10

Decretum Gratiani Emendatum et Notationibus (1632) 1585; Decretum Gratiani Emendatum et Annotationibus (1601) 1492, Causa 17 Quaestio 4 Canone 43. The word nullum in the text of Augustine is replaced by neminem in the text of Gratian.

and collected in the Corpus Iuris Canonici,11

Corpus Iuris Canonici Notis Illustratem Gregorii XIII Iussu Editum I annotated by Antonio Naldi (1661) 721.

Saint Augustine of Hippo (354–430) identified a moral duty on the Church not to accept a legacy where this would lead to the exclusion of the testator's child from his inheritance:12

Augustine, Sermon 355 De Vita et Moribus Clericorum Suorum. The Latin text is contained in Collectio Selecta SS Ecclesiae Patrum (1838) S Augustinus 347–355. The sermon, although not expressly referring to the same, seems to reflect the wider principle found in the Gospel of Mark 7:11–13.

Quicumque vult exheredato filio heredem facere Ecclesiam; quaerat alterum qui suscipiat, non Augustinum; imo Deo propito nullum invenit. Anyone who wishes to make the church his heir after disinheriting his son, should look for someone else to accept the legacy, not Augustine; or rather, by God's grace, may he not find anyone to take it.13

The First Sermon on the Way of Life of his Clergy is translated in The Works of Saint Augustine: A Translation for the 21st Century Part 3 Sermons 341–400 – Homilies 10 translated by E Hill and J E Rotelle (eds) (1995) 165–172 at 169.

This passage, asserting a moral obligation to decline a bequest or return it where its acceptance would disinherit a child of the testator, was cited to the Court of Session in the very first reported Scottish case on the application of the conditio si testator sine liberis decesserit.14

Chrystie v Chrystie 13 July 1681 2 Stair 889 reported sub nom Christie v Christie (1681) Mor 8197 with further proceedings at Christy v Christy December 1682 2 BS 26; David Christy v James Christy 22 December 1682 4 BS 444.

It was also used by the French jurists Connanus (1508–1551)15

François Connan Parisiensis, Commentariorum Iuris Civilis Book 10 (1566) De revocandis donationibus 382 para 3.

and Cujacius (1520 or 1522–1590)16

Cujacius, Opera ad Parisiensem Fabriotam Editionem Prati (1864) Part 4 I 1486 Recitationes Solemnes in Cod ad LV de revoc don.

and the Roman-Dutch jurist Johannes Voet (1647–1713)17

Voet, Pandects 39.5.33; P Gane, The Selective Voet 8 vols (1955–1958) VI 126 n 1.

to fortify an interpretation of a similar principle in wider Civilian tradition. The closest Scottish writers came to accepting a semblance of this line of reasoning came in the works of Henry Home, Lord Kames (1696–1782), who regarded the conditio si testator as a rule that applied when the testator, by an oversight, had omitted provision for his afterborn child and, instead, had left his property to a third party disponee. As one of the justifications underpinning the conditio si testator Kames reasoned that equity would not allow the third party disponee to benefit because:18

Kames, Principles of Equity 2nd edn (1767) 137.

the disponee ought not in conscience to take advantage of that oversight ad lucrum captandum.19

To gain an advantage.

However, this somewhat idiosyncratic view, given without express reference to the wider Civilian or Canon law sources noted above, was never more fully developed or accepted in Scots law. Just as there is a general freedom in Scots law to decline a bequest, so too is there a general freedom to accept it.20

A distant echo of the rule of Saint Augustine is seen in the Scottish position that a solicitor is generally precluded by a professional obligation from accepting a bequest in a will prepared by him for a client, but this is not restricted to cases where a child is disinherited: Solicitors (Scotland) Practice Rules 2011, Rule B2.28; A Barr, J Biggar, A Dalgleish and H Stevens, Drafting Wills in Scotland 2nd edn (2009) 400–405, paras 6.174–6.181; A A Paterson and B Ritchie, Law, Practice and Conduct for Solicitors 2nd edn (2014) 266–272, para 8.12. See Read v Cattanach 2 August 1990 (OH), Lord Cameron, briefly noted at 1990 GWD 31–1839, but otherwise unreported; available on LEXIS with the relevant discipline tribunal hearing being Cattanach DTD 699/87; and appeal noted at Glasgow Herald 21 May 1988 page 2 “Will Case Solicitor is Fined £4000”.

The Scottish conditio si testator sine liberis decesserit was to be developed not on the basis of a moral duty on the beneficiary to decline a bequest which would disinherit a child. Instead, as it developed, it was justified on several grounds, presented in isolation or in various combinations, such as the testator's lack of foresight, forgetfulness, inadvertence or error in omitting his own child from his testamentary provision,21

E.g. Patons, Heirs of Nasmyth v Hamilton 16 May 1797 FC 52 case no 22, (1797) Mor 11376 at 11378 per counsel; Stuart-Gordon v Stuart-Gordon (1899) 1 F 1005 at 1011 per Lord McLaren; J McLaren, Wills and Succession 3rd edn (1894) I 403, para 733; Kames, Principles of Equity 1st edn (1760) 93, and 2nd edn (1767) 136–137.

the
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