Scottish Court of Session Decisions

I recognise a great deal of force in that argument, but it appears upon the other hand (1) that the pursuer obtained certain information from the Board of Lunacy which led him to believe that the condition of M'Innes had materially improved, (2) that the pursuer, from interviews which he himself had with M'Innes, formed a strong opinion that the latter had become capable of managing his own affairs, and (3) that notwithstanding the malady from which he suffered M'Innes was in fact capable of conversing rationally and coherently.

Such being the position of matters, I have come to be of opinion that, subject to taxation, the pursuer is entitled to payment of that branch of the account which relates to the proposed proceedings for recall of the curatory. I have not arrived at that conclusion without difficulty, but the considerations which have turned the scale in my mind are in the first place that there is no reason to suppose that the pursuer was merely running up an account, or acting otherwise than in the way which he honestly believed to be for the interest of his client, and in the second place, as I have already indicated, I regard services rendered in good faith with the view of having the curatory recalled as presenting a favourable case for allowing remuneration out of the estate.

The next branch of this case is that which relates to the trust-disposition and settlement. I am of opinion that these charges cannot be allowed against the estate.

It is a serious matter to make a will for a person who has been found—although not by the verdict of a jury—to be of unsound mind. And the pursuer himself seems to have been impressed with that view, because he took the opinion of Dr Clouston, who had an interview with M'Innes in regard to the capacity of the latter. Dr Clouston reported that M'Innes showed ‘evident signs of brain disease,” and that he (Dr Clouston) could not at present say ‘that the will he proposed to make’ (that is, the will already prepared by the pursuer) ‘would be one whose provisions were not directly affected by his disease.’

Now, I think that plainly the pursuer would not have been entitled to prepare a will after obtaining such an opinion from Dr Clouston, and as he took it upon himself to prepare the will before he got Dr Clouston's opinion—a step which he himself appears to have thought necessary—he is not, in my judgment, entitled to be remunerated out of the curatorial estate.

I understand, however, that Dr Clouston was consulted not only in regard to M'Innes’ capacity to make a will but also with a view to an application for recall of the curatory. I am therefore of opinion that the pursuer is entitled to recover the fee which he paid to Dr Clouston.

There remain certain charges of comparatively small amount for advising M'Innes in regard to certain stocks and a proposed sale of house property in Glasgow.

I think that there might very well be circumstances in which a person under curatory would be entitled to have independent legal advice, and a law-agent would be held to be justified in giving (at the expense of the estate) such advice in regard to the way in which the curator was managing his affairs, but I am not aware that such circumstances existed here. There has not been a proof in the case, as it was obviously desirable if possible to avoid the expense of a proof, but there has been a full production of the correspondence, and of course I was ready to hear any explanations which counsel desired to give, and I should also have been ready to allow inquiry in regard to any particular point which required to be cleared up. There is, however, nothing in the correspondence relating to the business matters with which I am now dealing, nor did the pursuer's counsel make any statement as to the circumstances under which the pursuer was consulted, nor does the consultation appear to have had any result. The correspondence shows that M'Innes had the greatest distrust of his curator (whom he believed to be acting dishonestly), and to have desired the pursuer's assistance to protect him against the curator. There is, however, no reason to suppose that there was any foundation whatever for M'Innes’ distrust of the curator, and in the absence of special circumstances I am unable to sustain as a good charge against the estate that part of the account which relates to advice given in regard to the management of the estate.

I shall therefore find that the account sued for forms a valid charge against, and falls to be paid out of, the estate of the said Andrew M'Innes in so far as it relates, but only in so far as it relates, to services rendered by the pursuer with the view of obtaining a recall of the curatory, and with that finding I shall remit the account to the Auditor for taxation.”