Legal Definitions - proving the tenor

Proving the tenor is a specific legal action under Scots law. It refers to a formal court process initiated to legally establish the exact contents or "tenor" of an important legal document, such as a will, a property deed, or a contract, when the original document has been lost, stolen, or destroyed. The primary goal is to prove what the missing document *said* so that its legal effect can still be recognized and enforced, even without the physical original.

• Example 1: A Lost Will After a Disaster

  Imagine an elderly individual passes away, and their family knows a will existed, detailing how their estate should be distributed. However, the original will was stored in their home, which was subsequently destroyed in a flood. Despite extensive searching, the physical document cannot be recovered. In this situation, the executor or beneficiaries would initiate an action of proving the tenor. They would present evidence to the Scottish courts, such as copies of the will, drafts prepared by the solicitor, or even testimonies from witnesses who were present when the will was signed, to demonstrate what the lost will contained. If successful, the court would formally declare the terms of the will, allowing the estate to be administered according to the deceased's wishes, even without the original document.

• Example 2: Missing Property Deeds

  Consider a situation where a rural community has relied on a specific right of way across a neighboring field for generations, believing it was formally granted in an old title deed. When the land changes ownership, the new owner disputes this right, claiming no such right exists in their records. Upon investigation, it's discovered that the original deed granting the right of way, dating back over a century, has been lost or was never properly registered in modern records. To legally enforce their right, the community could pursue an action of proving the tenor. They might present historical maps, old correspondence, witness statements from long-term residents, or even evidence of continuous use, to convince the court of the original deed's terms and establish the existence of the right of way.

• Example 3: A Destroyed Trust Document

  A charitable foundation was established many decades ago with a detailed trust deed outlining its mission, governance structure, and how its funds should be managed. Over time, the original physical trust deed was inadvertently destroyed during an office renovation, and no complete digital copy was ever made. Years later, the trustees face a complex legal question regarding the interpretation of their powers in a new investment opportunity. Without the original deed, they cannot definitively prove the founder's exact intentions. To resolve this, the trustees might undertake an action of proving the tenor. They would gather any surviving fragments, solicitor's notes from the time of creation, or historical minutes of meetings that referenced the deed's contents, to formally reconstruct and establish the precise terms of the original trust deed, ensuring they continue to act in accordance with its foundational principles.