INTRODUCTION

Forfeiture clauses and events leading to disinheritance or the forfeiture of bequests are well known in the field of succession as the means by which entitlements are forfeited in accordance with the express provision of the testator or by law. This chapter examines the nature of these forfeiture clauses and forfeiture events in Scots law. As forfeiture has limited application to the rights of executors, it will address forfeiture only in relation to beneficiaries' rights.

THE RIGHTS PASSING

To understand forfeiture one requires an appreciation of the rights arising and passing on death and a familiarity with the law of vesting and the nature of an executor. Upon these matters the authorities are obscure because the study of the law of succession has for too long been divorced from the general law of property. For assistance one may refer to basic principles, although there remains a debate as to their precise application. For this chapter the following brief and, of necessity, over-simplified overview of the modern law will have to suffice.

The deceased's estate may contain both real and personal rights. There are conceptual difficulties with the idea that personal rights can be incorporeal things capable of ownership, but acceptance of this assists analysis of the transfer of the deceased's estate to the beneficiaries. The purpose of the law of succession is to effect a conveyance of the items in the deceased's estate to the relevant beneficiaries so that they are wholly distributed.