Mackintosh's JF v Lord Advocate

Factual and Procedural Background

The opinion concerns the administration of an estate by a judicial factor following the death of a testatrix who left directions in her will regarding the erection of a monument or mausoleum. The testatrix, unmarried and without living relatives, sought to have a granite vault erected in Inverness as a memorial to herself and two relatives (an uncle and aunt) who were already buried together in Tomnahurich Cemetery. A central issue was the legality and feasibility of exhuming the remains of these relatives and relocating them to the proposed vault. The judicial factor sought directions on whether to carry out the testatrix's wishes or to administer the estate as intestate, with the Crown claiming as ultimus haeres.

Legal Issues Presented

1. Whether a testamentary direction to spend estate funds on erecting a monument or memorial to the deceased is a valid exercise of testamenti factio under Scottish law.
2. Whether the testatrix’s directions for erecting a mausoleum, given the scale and cost, constitute an abuse of testamentary power by being grotesque, extravagant, wasteful, or futile.
3. Whether a stranger to the deceased (the testatrix being unrelated to the interred relatives) has any legal right to dispose of or order the exhumation and re-interment of the mortal remains of others.
4. Whether the bequest and directions in the will are capable of lawful fulfilment given the legal restrictions on exhumation and removal of remains.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Moncrief v. Monipenny (1713)	Validity of testamentary directions for erection of a monument as part of funeral expenses under Scottish law.	Confirmed that directions for erecting a monument are valid and may be treated as funeral expenses payable from the deceased’s part of the estate.
Aitken v. Aitken's Trustees	Limits on testamentary power where directions are grotesque, extravagant, wasteful, or futile.	Used to consider whether the testatrix’s directions were so excessive as to be invalid; court concluded they were not.
Mansfield (as cited from Lord Justice-Clerk Boyle)	Common law principle prohibiting interference with graves or disturbance of interred remains without lawful authority.	Applied to conclude that exhumation and removal of remains by a stranger is unlawful and the bequest is incapable of lawful fulfilment.
Soutar	Criminality of disinterring a dead body without lawful authority.	Supported the court's view that the proposed exhumation would constitute a criminal offence and could not be authorised.

Court's Reasoning and Analysis

The court first addressed the validity of the testatrix’s direction to erect a monument, holding that under Scottish law such a direction is valid and may be treated as funeral expenses, relying on the civil law principle incorporated into Scots law and the case of Moncrief v. Monipenny. The court rejected reliance on English authorities, emphasizing the primacy of Scottish law.

Next, the court considered whether the direction was so extravagant or futile as to be invalid under the principles from the M'Caig cases and Aitken v. Aitken’s Trustees. Although the project was disproportionate and unusual, the court found it did not cross the threshold of invalidity for extravagance or wastefulness, especially given the testatrix’s personal circumstances and motives.

The court then identified a critical legal obstacle: the testatrix’s requirement that the remains of her uncle and aunt be exhumed and re-interred in the new vault. The court found no authority in Scots law allowing a stranger to dispose of the mortal remains of others. It recognized that only near relatives have limited rights regarding graves and exhumation, subject to court sanction and statutory regulation, none of which would apply to the testatrix.

Further, the court noted that the proposed exhumation would be a criminal offence without lawful authority, and that the judicial factor would have no standing to seek a warrant for exhumation. The court concluded that this indispensable part of the project was impossible to fulfil lawfully, rendering the entire bequest void for impossibility of lawful fulfilment.

Consequently, the court directed that the estate be administered as intestate and that the Crown’s claim as ultimus haeres be acknowledged, with an understanding that a reasonable sum could be allowed for some form of memorial to the deceased testatrix.

Holding and Implications

The court held that the testamentary direction to erect a monument or mausoleum is, in principle, valid under Scottish law. However, the specific bequest requiring the exhumation and re-interment of the testatrix’s uncle and aunt’s remains is incapable of lawful fulfilment and therefore void.

The direct effect of this decision is that the estate must be administered as if the testatrix died intestate, with the Crown entitled to claim as ultimus haeres. The court’s ruling does not establish new precedent beyond confirming the limits of testamentary power in relation to the disposition of mortal remains of unrelated persons. The judicial factor and Crown may agree on a reasonable memorial for the testatrix, but the proposed mausoleum including the re-interment cannot proceed.