Devlin's Trustees v Breen

The Scottish rule of conditio si sine liberis institutus decesserit ordinarily preserves a testamentary family provision for the issue of a child who predeceases the testator. A gift to named children, a survivorship clause and the testator’s knowledge that a child might predecease do not by themselves exclude the rule.

The rule is one of construction, not a rebuttable presumption of law. It may be displaced only by a contrary intention expressed or clearly implied in the operative testamentary writings. Revoked wills, another person’s settlement and the testator’s later oral statements are inadmissible or irrelevant for that purpose.

A testatrix directed her trustees to realise her residuary estate and divide it equally between her two surviving children, Elizabeth and Thomas, or the survivor. Thomas died six months before the testatrix, leaving five children. Elizabeth claimed the whole residue under the survivorship wording, while Thomas’s children claimed his half-share under the Scottish conditio si sine liberis institutus decesserit.

The Lord Ordinary held that the conditio did not apply. A majority of the Second Division reversed that decision, although Lord Mackay considered that certain averments should be remitted to proof. The questions before the House were whether the conditio qualified the survivorship gift and whether evidence concerning revoked wills and the testatrix’s husband’s settlement was admissible or relevant.

1. Appeal dismissed unanimously. Viscount Simon adopted Lord Macmillan’s opinion. Lord Thankerton delivered reasons reaching the same conclusion, Lord Simonds concurred in Lord Macmillan’s opinion, and Lord Porter concurred. The majority interlocutor of the Second Division was therefore affirmed.

2. Per Lord Macmillan, the conditio si sine liberis institutus decesserit provides that a testamentary gift does not fail merely because the instituted beneficiary predeceases the testator. Where that beneficiary leaves issue, the issue are conditionally instituted in the beneficiary’s place. Its typical application is a family provision made by a parent for a child, reflecting the law’s recognition that a parent ordinarily intends descendants not to be left without provision.

3. Per Lord Macmillan and Lord Thankerton, the residuary gift fell within the rule’s original ambit. It formed part of a universal settlement, comprised a share of residue and was made equally for the testatrix’s two children who were alive when the will was executed. Naming the children individually did not alter the character of the gift as a provision for children. Neither the survivorship clause nor the testatrix’s contemplation that Thomas might predecease her excluded the rule.

4. Per Lord Thankerton, the conditio is a rule of construction applicable to a limited class of wills. It is not a presumption of law which may be rebutted by evidence. Lord Macmillan accepted that a testamentary rule of construction must yield where the will expressly, or by clear implication, demonstrates a contrary intention. The provisions for another deceased son’s children and concerning a possible claim against Thomas or his executors did not demonstrate that the testatrix had contemplated Thomas dying with children and deliberately intended to exclude them.

5. Per Lord Macmillan and Lord Thankerton, evidence from the testatrix’s revoked wills and her deceased husband’s settlement was inadmissible for this purpose. It would invite conjecture rather than establish the meaning of the operative settlement. The alleged statements made by the testatrix after Thomas’s death were plainly irrelevant, and that contention was abandoned before the House.

6. Per Lord Thankerton, the rule operates only where the instituted beneficiary fails to take. It has no application where the beneficiary survived and acquired the interest, as occurred in Crichton's Trustee v Howat's Tutor.

1. House of Lords: The appeal was dismissed unanimously in [1945] UKHL 1, affirming the majority interlocutor of the Second Division.

2. Second Division of the Court of Session: A majority held that the conditio applied and reversed the Lord Ordinary. Lord Mackay dissented because he considered that certain averments should be remitted to proof. The court unanimously rejected the averments concerning the testatrix’s later oral statements.

3. Lord Ordinary: Lord Robertson held that the conditio did not apply.