Callander v Callander's Executor

Spouses who exclude their future children’s legal rights in an antenuptial marriage contract may restore those rights by a later agreement. The mere consensual termination of the trust providing the consideration for the exclusion does not, however, revive legitim by operation of law.

Whether legitim has been restored therefore depends upon construing the later deed. A deed which merely ends the marriage settlement trust and returns its funds to a parent does not also terminate a legally distinct exclusion of legitim. Clear language or a sufficient implication of an intention to restore the excluded right is required.

An antenuptial marriage contract created a trust for a husband, his wife and their future children. In consideration of those provisions, the contract renounced the wife’s legal rights and excluded the children’s claims to legitim. In 1953 the parents and their two adult sons executed a deed ending the trust and returning its funds to the father.

After the father’s death, one son claimed legitim from the moveable estate. The Lord Ordinary rejected the executor’s plea to relevancy and allowed proof. The First Division, by a majority, refused the executor’s reclaiming motion. The executor appealed to the House of Lords.

The central questions were whether ending the trust automatically revived legitim and, alternatively, whether the 1953 deed disclosed an intention to restore that right.

1. The appeal was allowed unanimously. Lord Reid delivered the leading speech. Viscount Dilhorne, Lord Diplock and Lord Salmon expressly agreed with it. Lord Morris of Borth-y-Gest reached the same conclusion in a separate speech.

2. Per Lord Reid, the exclusion of legal rights in an antenuptial marriage contract originated in contract. The contracting spouses could therefore restore those rights by a subsequent contract. The exclusion directly benefited only the spouses, and no principle prevented them from surrendering that benefit.

3. Per Lord Reid, “exclusion” described the legal effect more accurately than “discharge”. No right to legitim arose until the parent’s death. The marriage contract prevented that future right from coming into existence rather than discharging an existing right.

4. Per Lord Reid, a valid exclusion required the antenuptial contract to make a substitute provision which was not illusory. The provision need not be adequate. Nor was the exclusion invalidated because the fund later lost its value or because a power of appointment permitted one or more children to receive nothing.

5. Per Lord Reid, the adult children’s agreement to terminate the trust and return its property to their father did not revive legitim by operation of law. Their transaction was a gift. The law did not imply restoration of legitim merely because the provision underlying the original exclusion had been surrendered.

6. Per Lord Reid and Lord Morris, the 1953 deed did not disclose an intention to restore legitim. Its expressed purpose was to end the marriage settlement trust and reconvey the funds. The exclusion of legal rights was closely connected with the trust but was legally distinct from the trust provisions. The deed contained no language ending that exclusion, and its conveyancing machinery supplied no sufficient implication.

7. Lord Morris added that restoring the wife’s jus relictae and the children’s legitim would require provisions which the parties had not included. All parties were adults without legal incapacity and were to be held to the arrangement expressed in their deed. The decision of the First Division was accordingly displaced.

1. House of Lords: Allowed the executor’s appeal unanimously and displaced the First Division’s decision.
2. First Division of the Court of Session: By a majority comprising Lord Cameron and Lord Johnston, with Lord Fraser dissenting, refused the reclaiming motion and affirmed the Lord Ordinary’s interlocutor allowing proof on liability to account.
3. Lord Ordinary: Lord Emslie repelled the defenders’ plea to relevancy and allowed proof on the executor’s liability to account.