Scottish Court of Session Decisions

Reduction of a codicil added to the settlement of the late Peter Macfarlane, merchant in Alloa. The ground of reduction was, that the codicil had been fraudulently elicited from Macfarlane by means of undue influence, used by the defenders, and had been impetrated through facility and ignorance on the part of Macfarlane, while he was totally incapable of conceiving the plan of the codicil, and giving instructions and directions for preparing it, or of understanding its import, and executing it; that he signed the codicil without comprehending it, and that it was not his deed.

Among the defenders were the trustees of Macfarlane, including his relict, Mrs Jean Henderson or Macfarlane, who was also a consenter for her individual interest, to the codicil under reduction. They alleged that Macfarlane executed the deed with a full knowledge of its import and effect.

The following issues went to trial:—

“1. Whether the codicil, bearing date the 19th day of November, 1831, is not the deed of the late Peter Mucfurlane, merchant in Alloa?

“2. Whether, on or about the said 19th day of November, 1831, the said Peter Macfarlane was a person of a weak and facile mind, and easily imposed on; and whether the defenders, or any of them, taking advantage of his said facility and weakness, did, by fraud or circumvention, wrongfully obtain or procure the said deed, to the lesion of the said Peter Macfarlane.”

After adducing fifteen witnesses to depone to the condition of Macfarlane, in body and mind, the pursuer called two of the iustrumentary witnesses to the codicil, and closed his case. He did not call Fergusson, W.S., who was also an instrumentary witness, and the writer of the codicil.

The defenders adduced twelve witnesses, including Fergusson, W.S. One of these, a Miss Thomson, was objected to by the pursuer as inadmissible, on the ground of relationship. She was the niece of Mrs Macfarlane, the relict, who was one of Macfarlane's trustees, and was a party consenter, for her individual interest, to the codieil under reduction.

The Court sustained the objection.