Introduction
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When you buy a house the transaction completes (or “settles”) on the day the buyer pays the price and the seller delivers a formal document called a “disposition” conveying (transferring) ownership of the house from the seller to the buyer.
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Delivery of the disposition doesn’t make the buyer the owner of the house. That requires registration of the disposition in the Land Register. Nevertheless, a purchaser can do quite a lot with a delivered disposition even before they officially become owner. In particular, although it would be unusual, the purchaser could convey the house to someone else before registering ownership. In the old days (pre-1924) the deed by which that was done was called a “disposition and assignation”. And, even today, as illustrated below, that terminology with its cognate reference to “assignees” lingers on. But we’ll leave those semantics aside for the moment.
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For now, let’s suppose the buyers are a couple: Janet and John who are buying a house called “Ladybird House”. The disposition will include various clauses but here we focus only on one particular clause: the “destination” i.e. the provision as to who is entitled to succeed to an owner’s share in the house in the event of their death.
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Commonly, one finds only two alternatives but with an important difference in the effect of each alternative:
(1) there is a “general destination” of Janet’s share to her executors if she dies and of John’s share to his executors if he dies; or
(2) there is a “special destination” of the share of the first to die to the survivor of them.
Let’s take alternative (1) first:
(1) Where there is a “general destination” to Janet’s executors if she dies and to John’s executors if he dies
In this case the disposition would generally be worded along these lines:
“I, [ABC] heritable proprietor of the subjects hereinafter disponed, in consideration of the price of £[XYZ] paid to me by [Janet and John] of which I hereby acknowledge receipt, do hereby DISPONE to the said [Janet and John] equally between them and to their respective executors and assignees whomsoever ALL and WHOLE [Ladybird House] …”
The “destination” here is “to their respective executors and assignees”. This simply makes express:
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that if John dies his half share of the house goes to his executors (to be dealt with in terms of his will or on his “intestacy” if he leaves no will) and likewise, if Janet dies;
and also – although rarely done in practice –
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that they could sell on their shares to a third party without themselves registering in the Land Register. Traditionally, as was mentioned earlier on, this used to be done by a “disposition and assignation” – hence the phrase in bold in the example wording above still includes the word “assignees”.
But both those effects are, in any event, implied. In other words, the phrase “and to their respective executors and assignees whomsoever” is unnecessary. The result would be the same if those words were omitted. They simply express the “general destination” which the law would anyway imply. But lawyers are not averse to including unnecessary words expressed in the language of yesteryear.
(2) The second alternative is where the “destination” is to the survivor of Janet and John
A fairly common alternative to the “general destination” is the “survivorship special destination”. It’s called “special” simply because it alters the “general destination” implied by law.
In this case the disposition would generally be worded in a similar way to the example given in (1) above but with the alteration shown in bold below:
“… in consideration of the price of £[XYZ] paid to me by [Janet and John] of which I hereby acknowledge receipt, do hereby DISPONE to the said [Janet and John] equally between them and to the survivor of them …ALL and WHOLE [Ladybird House] …”
The “and to the survivor of them” alteration means, in effect, that Janet is making a legacy of her share on her death to John and John is making a legacy of his share on his death to Janet. In other words, it has the same effect as if Janet had made a will leaving her share to John and John had made a will leaving his share to Janet.
But there is an important difference: whereas a will can generally be “revoked” (cancelled) by the person who made it without anyone else’s involvement a “survivorship destination” in the title to a house cannot generally be “revoked” – in legal parlance “evacuated” – without both parties’ co-operation.
In particular, where, as in the example wording above, the disposition states (as it usually does) that both Janet and John contributed to the price of the house (i.e. “in consideration of the price of £[XYZ] paid to me by [Janet and John]”) getting rid of the “survivorship destination” in the title to the house requires the active co-operation of both. Neither can competently choose to “evacuate” the destination by her or his will. As was said in a leading case:
“the destination of [the house] … was taken to the two spouses jointly and the survivor of them … and to the purchase of which each spouse contributed one-half. I think that was a contractual arrangement where each took the chance of getting the half of the other, and accordingly … could not be carried, by any [will] whatsoever … this destination could [not] have been altered except by joint consent of the spouses.”
Exceptional cases where a survivorship destination in the title may be evacuated by will: Succession (Scotland) Act 1964 (“the 1964 Act”)
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Having said all that there are certain cases where a survivorship destination may competently be evacuated by will.
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For example, perhaps the price for Janet’s and John’s house was paid only by Janet and the wording of the disposition confirms that. In that case it would be competent for Janet to leave her share to someone else in her will. Or, perhaps, the survivorship destination in the title expressly says that it could be got rid of – “evacuated” – by either party. In such a case it would also be competent under the 1964 Act to “evacuate” the survivorship destination by will.
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But the 1964 Act only applies if the destination “could competently be evacuated by the [will]”. If both parties have contributed to the price that won’t be competent.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Martin McLellan: email martin@mitchells-roberton.co.uk