Scottish Court of Session Decisions

George Collie, grocer in Aberdeen, died on 12th August 1889, leaving moveable property of the value of over £2700, and a small amount of heritable property. He also left a trust-disposition and settlement dated 12th September 1888, by which he revoked all previous settlements made by him, and made over to William Pyper, as trustee for the purposes therein mentioned, the whole heritable and moveable estate which should belong to him at the time of his death, and also appointed William Pyper to be his sole executor.

By said settlement he directed his said trustee and executor (1) to pay his debts and funeral expenses; (2) to pay various legacies, amounting in all to the value of £1199, 15s., and including legacies of £500 to each of his brothers Thomson and James Collie. The settlement then proceeded—“And whatever residue there may be of my said estate shall be under the control and at the disposal of my said executor William Pyper; and I grant power of sale by public roup or private bargain; and I appoint James and George Collie, advocates in Aberdeen, to be the law-agents in the trust hereby created,” &c.

William Pyper claimed that the whole residue, after deduction of the debts, expenses, and legacies, was his absolute property.

Thomson Collie brought this action against William Pyper for reduction of the above settlement, and for payment to the pursuer of such sum as should be found to be his true interest in the estate of his brother George Collie.

The pursuer averred—“(Cond. 4) On 12th October 1883 the testator executed a trust-settlement… . Under it the pursuer and and his brother James Collie, or survivor (with the exception of a small portion left to George Collie Davidson), succeeded to the whole estate which the testator should die possessed of. (Cond. 5) The pretended settlement bears to be signed on 12th September 1888 in presence of Alexander Scorgie junior, warehouseman, and John Edwards junior, clerk, both in the employment of Lawson, Turnbull, & Company, merchants, Mealmarket Street, Aberdeen, of which firm the defender is a partner. (Cond. 6) The said settlement is not the deed of the said deceased George Collie. The deceased never intended to convey the bulk of his estate to the defender, as the said deed in point of fact does. The defender is a man of means. The settlement in question was procured by the defender from the deceased to his prejudice and lesion by fraud and circumvention and undue influence on the part of the defender. At the time when he subscribed the said pretended settlement of 12th September 1888 the said George Collie, whose mind had been failing for some months previously from excessive drinking and general debility, was not of a sound disposing mind, and was incapacitated from giving directions in regard to his affairs or the disposal of his property after his death. The deceased gave no instructions for the preparation of said settlement. At the time the testator signed it he did not understand the nature and effect of said settlement, and that it cancelled all previous settlements. Defender purposely did not explain to him that in particular it revoked his prior will of 12th October 1883, and made the defender his sole residuary legatee. The deed was purposely and fraudulently made by defender in the form of a trust in favour of defender in order to lead the deceased to suppose that the defender was appointed merely a trustee or manager of the estate for the benefit of the relatives of the deceased. It was not explained to the testator that the said settlement was truly an absolute conveyance to the defender of the bulk of the testator's estate. The defender alone instructed the preparation of the said settlement. He got Messrs J. & G. Collie, who are his own law-agents, and were not the law-agents of the deceased, to draft the deed, and the signature of the deceased was adhibited to said draft in defender's business premises. The defender prevented the deceased from having the advice of his own or any law-agent, and constituted himself his sole adviser. Neither Messrs J. & G. Collie, nor anyone on their behalf, ever received instructions from the deceased or consulted him regarding it. The deed was not read over to or by the deceased. For some time prior to execution of said settlement the defender stood in the relation of adviser to the deceased as regards his money matters. He invested his money for him, advised him in reference to his affairs generally, and had great influence

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over the deceased, and by fraud and circumvention and undue influence, or one or other of them, upon the deceased, who was at the time in a feeble condition of body and mind, and weak and facile, the defender induced him to sign the said settlement. He fraudulently represented to the deceased that his estate was by the said deed conveyed to his (deceased's) relatives or some of them, and not to the defender, and he fraudulently concealed the fact that by said settlement nearly two-thirds of his estate was conveyed to the defender himself. This was not the intention of the testator, and if he had not been deceived by defender as to the import of the deed, and been acted upon by the fraud and circumvention and dominating and undue influence and pressure used by the defender he would not have signed it. The deceased signed the said settlement under essential error as to its contents and its effect, fraudulently induced by defender. The said testator from said 12th September 1888, and prior thereto, down to his death in August 1889, continued in a state of mental debility induced by bodily weakness and intemperate habits, and he was under the belief that his estate would go to his relatives. (Cond. 7) The pursuer believes and avers that the said pretended settlement was not signed by the said George Collie, now deceased, in presence of the said instrumentary witnesses, nor did the said deceased ever acknowledge his subscription thereto to them. The same is therefore null and void.”