IHTM15050 - The extent of the share (Scotland): special destinations and proof of donation

If two or more people purchase an asset jointly there may be a contractual agreement between them which determines how the property passes on death.

If the title is just in their joint names, such as to John and Jane, they own an equal share which passes to their executors (IHTM05012) on their deaths and is part of their free estate.

But if the title is to John and Jane and the survivor and they have paid equally for the asset, the survivor will be entitled to the whole on the death of the first to die (Perrett’s Trs v Perrett [1909] 46 SLR 453). This is known as special (or survivorship) destination.

Both parties do, however, have the right to dispose of their shares in life (Steele v Caldwell [1979] SLT 228), which will defeat the operation of the special destination.

If the price was not provided equally the question of whether the donor has conferred an immediate beneficial interest (IHTM15011) on the other party will depend on their intention. Such a donor can revoke the survivorship destination, explicitly, by Will (IHTM12047) under the Succession (Scotland) Act 1964/S30 . But the donee may not do the same to defeat the donor’s right to the whole of the asset.

If the whole of a joint asset was provided by one person they retain ownership of the whole until they put title into joint names, or, by some other act, show they intend to make an immediate gift to the other joint owner.

Proof of gift requires evidence of both intention and delivery. Evidence of intention does not need to be in writing and oral evidence is acceptable. Delivery may be actual (for example, physically handing over the asset to the donee) or constructive (for example, handing over one book from a collection). 

If there is no immediate gift (by intention and delivery) the asset remains part of the provider’s estate and will only pass to the other under the survivorship destination on their death, unless the Will contains a clause that explicitly revokes it and conforms to Succession (Scotland) Act 1964/S30 .

The Succession (Scotland) Act 2016 provides that for death after 1 November 2016 a special destination of property in favour of a former spouse or civil partner will now be revoked by the legal end to their relationship, provided the death of the testator occurs after the legal termination of the marriage or civil partnership.