Earl of Balfour (Appellant) v Keeper of the Registers of Scotland and Others (Respondents) (Scotland)

Under section 47 of the Entail Amendment (Scotland) Act 1848, the relevant trust deed is identified by examining the applicant’s lawful possession when the application is made. Only the deed or deeds then necessary to create or qualify that interest are relevant.

A codicil which affected an earlier liferenter but whose operation is spent does not change the date of the settlement governing a later liferenter. Nor does a codicil merely confirming untouched beneficial provisions republish them. A person of full age, born after execution of the operative trust deed, may therefore obtain a decree declaring fee simple ownership free from the specified restrictions.

The First Earl of Balfour settled his residuary estate, including the lands and barony of Whittingehame, upon a series of successive liferents. A 1927 codicil removed his brother as first liferenter and substituted the brother’s heir male. The appellant, born after the 1923 settlement but before that codicil, later possessed the property as the next heir male.

The Extra Division of the Court of Session refused his petition for a declaration of fee simple ownership under the Entail Amendment (Scotland) Act 1848: 2002 SLT 981. It treated the operative settlement as comprising both the original deed and the 1927 codicil. The issue was whether the appellant possessed by virtue of the 1923 settlement alone or by virtue of that settlement read with the later codicil.

1. The appeal was allowed unanimously. Lord Hope, Lord Clyde and Lord Rodger delivered concurring substantive speeches. Lord Bingham and Lord Hoffmann agreed with all three. The Extra Division’s interlocutor was recalled, and the Court of Session was directed to declare the appellant fee simple proprietor under section 47 of the Entail Amendment (Scotland) Act 1848.

2. Per Lord Hope, Lord Clyde and Lord Rodger, section 47 is the provision apt to successive liferents created through a trust disposition. Section 48 is directed to proper liferents constituted outside a trust. The applicant’s entitlement therefore depended on the deed of trust by virtue of which he was in lawful possession.

3. Per Lord Hope, section 47 requires three inquiries: identification of the operative trust deed and the land possessed under it; identification of restrictions within that deed; and consideration of restrictions in any other deed qualifying the trust or the applicant’s interest. The first inquiry was decisive. Per Lord Clyde and Lord Rodger, the statutory language directs attention to the applicant’s actual position when applying, rather than to every testamentary writing or every deed historically affecting the succession.

4. Per Lord Hope, Lord Clyde and Lord Rodger, the 1927 codicil removed the Second Earl and accelerated the Third Earl’s liferent. Its purpose was spent once that succession occurred. The appellant later took as a member of the class of heirs male created solely by the 1923 settlement. The codicil neither created nor qualified his interest.

5. Per Lord Hope and Lord Rodger, merely confirming the untouched provisions of the original settlement did not republish or recreate them at the codicil’s date. The appellant was born after execution of the only deed by virtue of which he possessed. He was therefore entitled to be freed from its restrictions.

6. The declaration was to state that the appellant owned the property unaffected by the conditions, provisions, restrictions or limitations in Purpose In the Seventh Place. The parties’ costs were ordered to be paid from the heritable property, while the trustees’ expenses were to be borne by the estate remaining in their hands.

1. House of Lords: The appeal was allowed unanimously. The interlocutor below was recalled and the Court of Session was directed to grant the statutory declaration: [2002] UKHL 42.
2. Extra Division of the Court of Session: The prayer of the petition was refused because the operative trust settlement was held to comprise the 1923 settlement and the 1927 codicil: 2002 SLT 981.