Scottish Court of Session Decisions

This was a special case presented for the determination of questions as to the validity and effect of the testamentary writings of Robert Gray, who resided in Dundee, and died there on 19th December 1899.

By his will, which was dated 7th July 1893, the testator appointed certain persons to be his trustees and executors. He, inter alia, bequeathed to Agnes Wilson, his housekeeper, an annuity of £30, to Mrs Barbara Wilson an annuity of £10, and to Mrs Robert Dow an annuity of £5. He further directed his trustees to pay over the residue of his estate, after the death of the last annuitant, to the Association for the Education of the Deaf and Dumb in Dundee, to be applied in establishing bursaries or scholarships. The will, which was written on a printed form of a will in the English style, was framed by Mr Miln, actuary in the Dundee Savings Bank, at the testator's request, and according to his instructions. It was duly signed by him in Mr Miln's office in presence of two witnesses, who subscribed it as such.

After the testator's death the will was found in his repositories. On the margin of the first page was written a note in red ink, in the testator's handwriting, in these terms—“Mrs Barbara Wilson died on the 22nd of Decr., year 1894. Her annuity falls to Agnes Wilson afore mentioned.” This note was neither signed nor initialled. In a space which had been left between the end of the will and the testator's signature, there was written also in red ink and in his handwriting the following addition:—“ Codicil.—The will above was written by John Miln, formerly clerk to John Sturrock, writer, Dundee. I hereby enjoin that the annuity of ten pounds designed for Mrs Barbara Wilson, who died in Glasgow last year, shall be added to the annuity of Mrs Agnes Wilson forementioned, together with free use of my house furniture for her life, including my library, and my trustees fore—said may choose anything if they like for themselves.”

The admitted facts with regard to these additions in red ink were as follows:—“Mrs Barbara Wilson, the mother-in-law of Agnes Wilson, died on 22nd December 1894. About a week after her death the deceased had a conversation with his housekeeper in his house. He asked her whether she wished to remain in his house after his death, seeing that she would have no home in Glasgow in consequence of the death of her mother-in-law who lived there. Mrs Agnes Wilson said she would like to remain, and the deceased then told her that the £10 annuity which he had left to her mother-in-law would be added to her

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annuity, as he did not think she would have enough, and that she would get the use of his furniture during her life. On the same day he told her that he had written a codicil to his will in red ink, and that it was all right now. He told her also that the codicil gave her an additional annuity of £10 and the furniture until she died, and that the furniture was then to be sold by his trustees. He many times on later dates repeated these statements to Mrs Agnes Wilson.”

A question having arisen in regard to the validity and effect of the additions in red ink this special case was presented for the opinion and judgment of the Court.

The parties to the special case were—(1) the trustees and executors under the will, (2) Mrs Agnes Wilson, (3) Mrs Robert Dow, (4) the directors of the Dundee Institution for the Education of the Deaf and Dumb.

The first and second parties maintained that the holograph marginal note on page one of the deceased's will, and the holograph addition written in red ink at the end of the will beginning “codicil” were, or at least the said addition beginning “codicil” was, a good and valid testamentary provision made by the deceased, and must receive effect as containing his final directions for the disposal of his estate.

The third and fourth parties maintained that the two additions in red ink and holograph of the deceased were invalid and ineffectual, being unsigned and otherwise destitute of the formalities necessary to give them due testamentary effect under the law of Scotland. They therefore claimed that the whole residue of the estate subject to the annuities which it was admitted were validly bequeathed, must be held for the fourth parties.

The question of law for the opinion of the Court was—“Are the red ink holograph additions to the said will, or either and which of them, valid and effectual as part of the testamentary writings of the deceased Robert Gray?”

Argued for the first and second parties—The addition headed “Codicil” should receive effect. It was as truly part of the deed as any other, and was authenticated by the testator's subscription. The law required no other evidence of a completed intention. But if that was necessary it was matter of admission that the testator had spoken to his housekeeper of the additional provision given her by the “codicil,” both before and after he had made it—Stair, iv. 42, 6; Speirs v. Home Speirs, July 19, 1879, 6 R. 1359; Russell's Trustees v. Henderson, Dec. 11, 1883, 11 R. 283; Burnie's Trustees v. Lawrie, July 17, 1894, 21 R. 1075.

The first and second parties did not argue in support of the validity of the unsigned marginal addition.

Argued for the third and fourth parties—The so-called “codicil” was not validly subscribed. It partially revoked the will, which the testator had previously subscribed. It was settled that an alteration in the terms of a deed could not be made in the testing clause, and the present was a less favourable case for admitting it. The testator might easily have signed the codicil if he had meant it to receive effect. That he had not done so showed that it was merely deliberative— Brown v. Maxwell's Executors, May 21, 1884, 11 R. 821, per Lord Young; Pattison's Trustees v. University of Edinburgh, Nov. 9, 1888, 16 R. 73; Parker v. Matheson, March 9, 1876, 13 S.L.R., 405; Goldie v. Shedden, Nov. 4, 1885, 13 R. 138.