Legal Definitions - quibus non existentibus

quibus non existentibus

This Latin phrase, used in Scots law, translates to "whom failing" or "those not existing." It refers to a situation where a legal document, such as a will, trust deed, or property disposition, makes a provision for an individual or entity that is later discovered never to have existed.

When a document includes a clause addressing "quibus non existentibus," it means that if the named party or beneficiary is found to be non-existent, the provision for them fails, and an alternative course of action specified in the document will take effect. This ensures that the legal intent can still be carried out even if there was a factual error regarding the existence of a named recipient.

Here are some examples illustrating this concept:

• Example 1: A Will with a Fictional Beneficiary

  Imagine a will that states, "I bequeath my antique watch collection to my long-lost cousin, Elias Thorne, who resides in the remote village of Oakhaven." After the testator's death, extensive searches reveal that no person named Elias Thorne, matching the description, ever existed, nor does a village named Oakhaven. The will might then contain a "quibus non existentibus" clause specifying that "whom failing Elias Thorne," the watch collection should instead go to a named charity. This clause ensures the collection is not left in limbo due to the non-existence of the intended primary beneficiary.

• Example 2: A Trust for a Non-Existent Organization

  A wealthy philanthropist establishes a trust fund intended to provide annual grants to "The Society for the Preservation of Mythical Creatures." The trust deed outlines the terms for these grants. However, upon investigation, it is discovered that no such organization was ever formally established or exists. The trust deed would ideally include a "quibus non existentibus" provision, stating that "should The Society for the Preservation of Mythical Creatures not exist," the funds should instead be directed to a recognized animal welfare charity. This prevents the trust's purpose from failing entirely due to the non-existence of the initial beneficiary.

• Example 3: A Deed of Gift to an Unidentified Heir

  A historical family deed attempts to transfer ownership of a remote ancestral cottage to "the eldest male descendant of Lord Byron Fitzwilliam, born between 1850 and 1860." Generations later, when the deed is reviewed, genealogical research conclusively proves that Lord Byron Fitzwilliam had no male descendants born within that specified decade, or indeed any male descendants at all. The deed would then rely on a "quibus non existentibus" clause to determine the alternative recipient of the cottage, perhaps directing it to the nearest living relative or a specific family trust, because the primary, non-existent heir cannot receive the property.