The ratio of the potential maximum demand to the actual bandwidth. In practice, they are planning rules which are used to design a network offering (typically) an Internet access service: the higher the contention ratio, the greater the number of users that may be trying to use the actual bandwidth at any one time and, therefore, the lower the effective bandwidth offered, especially at peak times. A contended service is a service which offers (or attempts to offer) the users of the network a minimum statistically guaranteed contention ratio, while typically offering peaks of usage of up to the maximum bandwidth supplied to the user.

Legal validity of Wills A testamentary writing is a valid and self-proving document in Scots law if (assuming it is drafted after 1995) it is: • subscribed by the testator on every page • it has been subscribed in the presence of a witness, and • the witness has subscribed on the last page The absence of all of these criteria is not fatal to the writing assuming that it has been subscribed by the testator. If it has, then any person with an interest in the writing (eg an executor or beneficiary) may lodge an application with the court to ‘set-up’ the writing. An application may be made by summary application in the Sheriff Court or as incidental to and in the course of other proceedings and, in practice, the application is often made at the time of applying for confirmation. The onus of proof in such an application will rest with the applicant and evidence will typically be by affidavit unless the court otherwise directs. The effect of a decree will

This document provides general guidance regarding some of the key issues in bringing a contentious probate claim. Your specialist Private Client practitioner will be able to provide tailored advice based on your personal circumstances. What is contentious probate? Losing someone you love is one of the most difficult experiences in life. It can be made even harder if you think there is a problem with their Will or the disposition of their estate, or if a family member challenges a Will that you are sure is valid. Contentious probate is a dispute over a person’s estate following their death. It is often between family members and/or close friends of the deceased These disputes are often divisive and emotional as they concern family members. They are also increasingly common as people are more aware of their legal rights and more willing to litigate over them. The value of estates has also increased as property prices have risen and family structures are often more complicated than they used to be, for example, with children from different relationships. A dependant can also

Private Client analysis: The deceased executed a very short homemade Will from his hospital bed during the last weeks of his life. The defendants challenged the Will on three grounds: (i) the deceased had not signed it, (ii) he lacked testamentary capacity, and (iii) he did not know or approve of its contents. Prior to proceedings being issued, the attesting witnesses prepared statements giving details of the circumstances surrounding the preparation and execution of the Will, including that they had seen the deceased sign it. In their defence, the defendants did not simply put the claimant to proof that the deceased had signed the Will; they denied that the he had signed it. They pleaded, inter alia, that a relative had been present at the bedside throughout the material time and no Will had been executed in his presence—the implication being that the attesting witnesses, and possibly the claimant, were participating in propounding a fraudulent Will. No pleading of fraud or forgery was particularised. The case also contains a useful reminder of precisely what is required for testamentary capacity, and knowledge and approval, in the context of a testator with diagnosed mental illness. Written by Paul Burton, barrister at Radcliffe Chambers and counsel for the claimant.

As with contentious estates, what might make the administration of a trust contentious is a wide and varied subject. The intention with this practice note is to highlight some practical examples and to identify routes to resolution, but it is not exhaustive. Generally contention in trust matters will be informed by the terms of the trust itself, interaction of trust administration and applicable law, and by trustees and/or beneficiaries themselves. In some cases, there will be elements of each. The trust deed Essential and formal validity While inter vivos trusts can be created orally, almost invariably all voluntary trusts are created by formal deed. All settlor-trustee trusts, inter vivos trusts relating to an interest in land, and mortis causa trusts must be constituted in writing. Scots law does not recognise ‘secret trusts’ where there are gifts made without reference to a trust or purposes. Accordingly there is considerable scope for matters of contention to arise from the terms of the trust deed itself. Perhaps most fundamentally, there is a possibility of contention

A secret or half-secret trust may be useful where a testator wishes to keep the identity of a beneficiary of a testamentary gift outside the text of their Will. Types of secret trusts There are two kinds of secret trusts: • secret or fully secret trusts • semi-secret or half-secret trusts A fully secret trust arises where the testator gives property by their Will to the donee but gives no indication that the donee is to hold their gift on trust, so that the gift looks like an absolute and beneficial one, but in fact the donee is bound by a trust obligation. Such an obligation can only arise if, during the testator's lifetime, they asked the donee to hold the gift not for their benefit but for the benefit of someone else and the donee has, expressly or by acquiescence, agreed to carry the testator's intention into effect. This form of trust was approved by the House of Lords in McCormick v Grogan. In McCormick v Grogan, C made a Will

Many Wills are fairly simplistic, merely dealing (for example) with a gift of the estate after the payment of debts to a spouse or children absolutely with a variation to include legacies. In such circumstances, there will be no continuing trust after the administration of the estate is complete so there will be little need to include extra powers for the trustees over and above those provided by law in the Trustee Act 2000 (TrA 2000) and other statutes (although it may not always be possible to predict whether or not a trust will arise). However, sometimes a continuing trust is appropriate, for example where minor beneficiaries are involved. A commonly encountered Will trust scenario is where there is a gift to the surviving spouse but if the spouse does not survive the testator the estate will pass to surviving issue either immediately or at a chosen age. If the children are minors or have not reached the specified age for the gift to vest absolutely, trust provisions will be required to ensure that the assets

An annuity is a sum of money payable periodically, out of personal estate. Savery v Dyer (1752) Amb 139 (not reported by LexisNexis®). It is personalty Parsons v Parsons. An annuity is a legacy and a bequest of such a capital sum as may be necessary to produce the amount of the annuity. Annuities are sometimes useful if a drip-feed approach is required. They are essentially, legacies payable by instalments for the lifetime of a beneficiary. The Will should provide if: • the executors have the power to purchase the annuity from the estate's capital assets • the executors set aside a sum from income to fund the purchase of the annuity • the executors set aside a sum from both capital and income to fund the purchase of the annuity • the annuity is purchased during the executors' lifetimes, if they have the funds to do so, the deferred annuity being vested in trustees on death Depending on the method chosen, there will be differing tax considerations, both capital and income. Annuities may be created: • inter

It is advisable that any Will is drafted as clearly as possible to avoid any ambiguity or unintended consequences. This is particularly important when considering who the intended beneficiaries of the estate are. For further guidance on why gifts in a Will may fail, including where there is a gift to an attesting witness, see Practice Note: Failure of gifts—causes and effect—Reasons a gift may fail. Identification Beneficiaries must be clearly identified in the Will, otherwise the gift will fail for uncertainty. When drafting a Will, it is common practice to state the beneficiaries' names and addresses as well as their relationship to the testator. If the gift is to an individual person rather than a group, it is unwise to describe that person by relationship alone because there may be more than one person answering that description. Where the identity of the person who fits the description changes, it is the person who fits that description at the date of the Will who is construed as the beneficiary. See

There are certain rules to consider when advising a testator on who to appoint as executors of their estate, trustees of any Will trust and guardians to any minor children the testator may have. In addition to these rules, a testator will also need to consider whether the appointments are suitable in the context of their family and personal circumstances. There are usually a number of factors to consider and some of the main points for consideration are outlined below. Executors An executor is the person appointed by the Will to carry into effect its provisions and to administer the property of the testator. For further guidance, see Practice Note: Definition of a personal representative. The omission to appoint one or more executors does not invalidate a Will. However, such an omission is inadvisable as it would result in a period after the death when there is no one in control of the testator's estate and affairs. Executors may be appointed: • expressly by Will • impliedly by Will where a testator fails to nominate

The terms 'legacy' or 'bequest' are generally only applied to a gift of money or a personal item but they can also, in certain circumstances, refer to the gift or devise of land. In addition, the term 'legacy' may or may not include annuity, according to the context. This was explained by Sir William Page Wood, VC in Gaskin v Rogers: '…if you find simply the word "legacy" used, and a direction to apportion the property amongst the legatees, unless there be something apparent on the face of the Will which shows that the testator has not used the word in its ordinary legal signification, it will include annuitants. The expression 'pecuniary legatees' in itself, I do not think, would go further than this—it would exclude specific legatees, that is, legatees of mere chattels, but it would have no effect in excluding, prima facie, annuitants from taking the same benefit as they would have taken if the word had been 'legatees' instead of 'pecuniary legatees'. All these rules of construction are open to the general and cardinal principle

Under a Will or a trust, a person may be given the power to appoint by their Will or otherwise to determine how the property of the original donor (the testator of a Will or a settlor of a trust) is to devolve. The person in whom this power is vested is known as the appointor. A power of appointment is a dispositive or distributive power and authorises a person to create or dispose of or distribute beneficial interests in property. This Practice Note contains a brief outline of the classifications of such powers. Types of powers of appointment A power of appointment may be classified as one of three types: general, special or hybrid. The basic distinction is between general and special powers. A general power may be defined as one that the appointor may exercise in favour of anyone they please, including themselves. Other powers, including all those exercisable in favour only of a defined class of beneficiaries, are special, although the courts have recognised an intermediate category known as hybrid powers. Personal