Scottish Court of Session Decisions

This was an action at the instance of Mrs M'Callum for reduction of an alleged general disposition and settlement executed by her niece Miss Middleton, dated 28th March 1893, whereby Miss Middleton bequeathed her whole means and estate to the defender Mrs Graham, under burden of payment of her debts, and a legacy of £100 to the Royal Infirmary.

The pursuer was the residuary legatee under an earlier trust-disposition and settlement executed by the deceased.

The pursuer averred—Shortly after her father's death in March 1892, Miss Middleton became very much addicted to excessive drinking, and this habit increased, she being sometimes intoxicated for days together. From the time of contracting this habit until her death Miss Middleton's physical and mental condition deteriorated, and she never recovered the full possession of her normal faculties. She lost much mental firmness and became of facile disposition, and easily influenced by anyone with whom she was in personal contact. About three months before her death Miss Middleton's habits grew worse, and it became necessary to get the assistance of a strong nurse to prevent her drinking. On the suggestion of a neighbour the defender was called in, and she remained with Miss Middleton until her death. “(Cond. 6) The defender, perceiving the weak and facile condition of Miss Middleton, and her liability to be easily imposed upon and unduly influenced, immediately set herself to induce Miss Middleton to execute a will in her favour. In pursuance of said scheme … sheend

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eavoured, as far as possible, to prevent any other person having access to Miss Middleton, persuaded Miss Middleton to dismiss the servant girl who had been in her employment for about three years, and refused admittance to Miss Middleton's minister and her friends when they called to see her. Further, the defender, in direct violation of the medical instructions, encouraged Miss Middleton in her habits of drinking. She on several occasions drove and walked out with Miss Middleton, and brought her home in a state of intoxication. She falsely pretended to Miss Middleton that she was a trained nurse and the widow of a doctor of medicine, whereas she was a pickle-maker. The consequence of the actings and representations of the said Mrs Graham was that Miss Middleton was induced to execute the deed presently under reduction a few weeks after she obtained access to the house. (Cond. 8) Owing to the effects of illness produced by her habits of excessive drinking, her mind was weak and facile, and Mrs Graham obtained a great influence over her, and taking advantage of the said weakness and facility for her own purposes, by fraud and circumvention induced Miss Middleton to execute the deed above mentioned. Further, the defender, acting as sole nurse for Miss Middleton, occupied a position peculiarly favourable for predisposing and influencing the deceased in her favour. This position she strengthened by excluding, as above stated, and as her position enabled her to do, the relatives and friends of Miss Middleton from having access to her presence. It was only by the exercise of this undue influence that Miss Middleton was induced to grant the deed under reduction.” …

On 6th March 1894 the Lord Ordinary ( Wellwood) approved of the following issues for trial of the cause—“(1) Whether, on or about the 28th day of March 1893, the deceased Miss Margaret Anderson Middleton was weak and facile in mind and easily imposed upon, and whether the defender, Mrs Mary Elizabeth Duncan or Mack or Graham, taking advantage of her said weakness and facility, did, by fraud or circumvention, obtain or procure from the said Miss Margaret Anderson Middleton the general disposition and settlement, dated on or about 28th March 1893, to the lesion of the said Miss Margaret Anderson Middleton? (2) Whether the defender, the said Mrs Mary Elizabeth Duncan or Mack or Graham, being the nurse of, and having in that position acquired a dominant and ascendant influence over the deceased Miss Margaret Anderson Middleton, did, by undue influence, procure and obtain from the latter the said general disposition and settlement, dated as aforesaid, to the lesion of the said Miss Margaret Anderson Middleton?”

“ Note—The line which separates the first and second of the issues proposed is very narrow, because, to support an issue of undue influence, there must be proof of weakened will which borders on facility, and of undue influence which is not easily distinguished from circumvention. But, under the latter issue, full proof of facility and circumvention is not required. It is sufficient to establish that ascendency was acquired by the defender in a position of trust over the will of another, and the abuse of that position by unduly influencing the person over whom ascendency was so acquired to execute a deed in favour of the defender.

It only remains to consider whether there are sufficient statements on record to warrant an issue of undue influence. I am of opinion that there are. The pursuer avers that the defender, having been employed as a nurse to prevent Miss Middleton from drinking, instead of doing so, gave her facilities for drinking, and by this means, and by excluding her relations and friends, obtained such ascendency over her, that in the course of a few months she obtained a will leaving everything to herself, with the exception of a legacy to the Infirmary.

A nurse has as great, if not greater, opportunities of acquiring an ascendency over her patient than a medical man has, who probably visits his patient only once a day, if so often; and I therefore see no reason why an issue of undue influence should not be granted in the present case.”

The defender reclaimed, and argued—The second issue should be disallowed. The case made by the pursuer was based on facility and circumvention, and was satisfied by the first issue— Munro v, Strain, February 14, 1874, 1 R. 522. Gray v. Binny, December 5, 1879, 7 R. 332. Morrison v. Maclean's Trustees, February 27, 1862, 24 D. 625. Further, the position of a nurse was quite different from that of a legal or medical adviser, and there was no authority for allowing an issue of undue influence in her case. The only Scotch case in which an issue of that kind had been allowed was one of agent and client— Harris v. Robertson, February 16, 1864, 2 Macph. 664. An agent, however, was not entitled to take a gratuity from his client— Anstruther v. Wilkie, January 31, 1856, 18 D. 405. Logan's Trustees v. Reid, June 13, 1885, 12 R. 1094. No such disqualification existed in the case of a nurse.

Argued for the pursuer—The second issue should be allowed. Undue influence was a relevant ground of reduction, and one known to the law of Scotland. It was appropriate to the circumstances of the case, and there were sufficient averments to support it. Such an issue was appropriate wherever, a relation existing between parties which created a dominant influence on the one hand, and induced confidence on the other, the party possessing the influence exercised it unduly to his own advantage— Morley v. Loughnan, L.R., 1893, 1 Ch. 736; Kerr on Fraud and Mistake, pp. 300 and 301; Gray v. Binny, supra, per Lord Shand, 7 R. 347. The relation between nurse and patient were eminently of that kind, and the defender was here alleged to have gained undue influence over her patient by encouraging the drunken habits

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which it was her special duty to restrain. There might be perfectly sound testing capacity and yet undue influence. If the pursuer had gone to a jury in Gray v. Binny with an issue of facility and circumvention only, he must have failed. In Munro v. Strain there was no averment of undue influence.

At advising—