Scottish Court of Session Decisions

Andrew Colville Wilson, doctor of medicine, Chesterfield, Derbyshire, pursuer, brought an action against (first) Flora Jane Hovell, Sydney, New South Wales, and (second) James Patterson Wilson, doctor of medicine, Sydney, New South Wales, for his interest, defenders, to have it found and declared that the deceased Mrs Christina Patterson or Wilson, who resided sometime at Redburn, Johnstone, and thereafter at Thorn House there, left no valid and effectual testamentary directions, and that her whole means and estate, heritable and moveable, fell accordingly to be divided according to the rules of intestate succession.

The first-named defender lodged defences.

The parties averred, inter alia—“ (Cond. 3) On 26th November 1916 the deceased wrote to Mr John B. Stirling, solicitor, Johnstone (who had been law agent to her and her husband for twenty years), a holograph letter, enclosing a document which she described in the said covering letter as ‘the substance of what I have twice written out on notepaper, once two years before Oct. 12, and again about that date,’ and giving various directions for the preparation of a settlement. The enclosed document, which was holograph of the deceased, was in the following terms:—‘Chesterfield,

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Oct. 1912.—I, Christina Wilson, leave all the property heritable or personal I may possess, or that may in time be left to me, to my friend and companion, Flora Jane Hovell, for her lifetime. At her death all property to be sold and revert to and be equally divided between what family my second son may have. The selfish treatment I have from time to time received from my two sons, coupled with the preference my eldest son has for inferior women, has caused my decision. Christina Wilson.’ The document and covering letter were sent by the deceased to Mr Stirling merely as instructions for the preparation of her will. The aspersions against the deceased's sons contained in them are entirely devoid of foundation. Further, in October 1912 her younger son was not married. He was not married until 15th April 1916, and there has been no issue of the marriage. The said Flora Jane Hovell had in October 1912 been out of the deceased's employment for nearly two years. ( Ans. 3) The said holograph document and covering letter are referred to. Admitted that in October 1912 the younger son of deceased was not married, that he was married at or about the date mentioned, that there has been no issue of the marriage, and that this defender has been out of the deceased's employment for nearly two years prior to October 1912. Denied that said holograph document was merely instructions for a will. Quoad ultra not known and not admitted. (Cond. 4) Mr Stirling on receiving said letter and document understood that they were sent to him merely as instructions for the preparation of the deceased's will. On that understanding he prepared, and on 30th November 1916 forwarded to the deceased, a draft settlement in accordance with her foresaid instructions, but the settlement was never executed by her and no reply was received from her. On 10th August 1917 she called on Mr Stirling, and referring to her younger son's marriage stated that the draft would not now do. She did not, however, give definite instructions as to her altered wishes. The interview proceeded on the footing that the deceased had not then made a will. ( Ans. 4) It is admitted that said draft, which is referred to, was never executed as a will by the deceased, and believed to be true that deceased did not reply to Mr Stirling. Quoad ultra not known and not admitted. So far as this defender is aware the deceased neither at said date of 10th August 1917 gave instructions for any alterations in her settlement, nor ever executed any testamentary deed subsequently to that referred to in article 3 of pursuer's condescendence. (Cond. 5) On 28th September 1921 the deceased approached Mr J. Greig Milne, of Messrs Anderson & Allan, writers, Glasgow, and a correspondence ensued in which she sought and received advice as to the extent to which she was free to dispose of her entire estate inter vivos or mortis causa. It proceeded on the footing that the deceased had not then made her will. ( Ans. 5) Said correspondence is referred to.”

The pursuer pleaded—“1. The holograph document, bearing to be dated October 1912, being intended by the deceased merely as a memorandum of instructions for the preparation of a will, and having no testamentary effect, decree should be pronounced in terms of the conclusions of the summons. 2. The deceased having left no testamentary writing, decree should be pronounced as concluded for.”

The defender pleaded—“ 2. The said holograph document being truly subscribed by the deceased, and being the completed testamentary settlement of her estate, the pursuer's plea to the contrary should be repelled and the defenders assoilzied. 3. The said holograph document being habile to vest the defender in the liferent of the deceased's estate, she is entitled to absolvitor. 4. The said holograph document presenting, ex facie, no indication of being other than the valid will of the deceased, can only be impugned by a probative writing of the deceased of equal solemnity and of later date, and proof should be limited to the production of such a document.”

On 23rd November 1922 the Lord Ordinary ( Constable) allowed a proof before answer.

The facts of the case and the import of the evidence appear from the opinion of the Lord Ordinary, who on 8th March 1923 sustained the pleas-in-law stated for the pursuer, and found and declared in terms of the declaratory conclusions of the summons.

Opinion.—“The pursuer in this case concludes for declarator that his mother, Mrs Christina Wilson, left no valid and effectual testamentary directions, and that her estate falls to be divided according to the rules of intestate succession. Mrs Wilson died in 1921, survived by two sons, of whom the pursuer is the elder, and the purpose of the action is to impugn the testamentary validity of a document holograph of Mrs Wilson, purporting to leave her whole estate in liferent to Miss Flora Hovell, the compearing defender, who is a stranger in blood, and on her death to be divided equally between the family of Mrs Wilson's second son.

“The document is quoted in full in Condescendence 3. On 26th November 1916 it was enclosed by the deceased in the following letter to her solicitor:—

‘4 Cross st.,

‘Chesterfield, 26th Novr. 1916.

‘Mr Stirling.

‘Dear Sir,—What I enclose along with this note is the substance of what I have twice written out on notepaper, once two years before Oct./12, and again about that date, and I wish the date Oct./12 to be retained. I see no reason to change my mind. If it is absolutely necessary. If it is absolutely necessary that my two sons get a fourth part each of what money or shares I may have to make my will legal, then they must have it. But seeing that I am living in England, no matter how, I don't think it is necessary to give it them, but you can find out. This I want all made correct at the earliest date. You did not make much of Currie. Your letter was not a reply to mine. I did not want the quarter

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interest returned. I wanted a fixed term for it to remain, and you give none. I don't wish this Will lengthened or stretched out in any way further than is absolutely necessary to make it legal. I give my reason for what I have done. I wish that retained in the Will, so that my two sons, if alive, may be reminded. If there is any further information you must have, then let me know at once and I will try to get it for you. I don't wish this Will lengthened or stretched out in any way further than is absolutely necessary to make it legal. I give my reason for what I have done. I wish that retained in the Will so that my two sons, if alive, may be reminded. I have repeated this to prevent mistake.—Yours faithfully, ‘ C. Wilson.’

In the course of a discussion in the procedure roll it was maintained for the defender that the action should be dismissed de plano on the ground that the document was in itself unexceptionable and clearly expressive of completed testamentary intention; but it appeared to me that a doubt as to such intention was created by the accompanying letter above quoted, and I therefore allowed a proof before answer of various averments for the pursuer regarding the history of the document, the actings of Mrs Wilson, and her relations with her family. The result of the authorities seemed to me to be that where doubt as to completed testamentary intention arises on the face of a document, evidence of all kinds is admissible to clear it up— Munro v. coutts, 1813, 1 Dow 437; Scott v. Sceales, 2 Macph. 613; Lowson v. Ford, 4 Macph. 631; Forsyth's Trustees v. Forsyth, 10 Macph. 616; Robb's Trustees v. Robb, 10 Macph. 692; Hamilton v. White, 8 R. 940, 9 R. (H.L.) 53; Sprot's Trustees v. Sprot, 1909 S.C. 272—and I thought that the same principle was applicable where the doubt was created by a holograph letter contemporaneous with the execution and delivery of the document. I had some doubts about the relevancy of the averments in Condescendence 5; but having regard to the authorities, I thought that I was not warranted in excluding them from the proof.

The result of the proof, which was confined to evidence for the pursuer, was as follows:—The pursuer's father, who was resident in Johnstone, Renfrewshire, died in 1904, leaving his whole estate to his widow, and his two sons, who were both then qualified medical practitioners, made no claim on the estate. About 1905 the pursuer acquired a medical practice in Renton, Dumbartonshire, where his mother went to live with him. She paid the rent and he paid all other expenses. In the beginning of 1911 the pursuer purchased a house and medical practice in Chesterfield, Derbyshire, and his mother shortly thereafter went to live with him there and remained in his house till she died in 1921. During that time, including a period of four and a-half years when he was away on war service, the pursuer bore all the household expenses. His brother went to practise in Australia many years ago, and married there in 1916, but has no family. Mrs Wilson was always strongly opposed to her sons, and especially to the pursuer, being married, and she even went the length of objecting to his visiting professionally houses where there were marriageable ladies. This does not rest only on the evidence of the pursuer, but is confirmed by Mr Stirling, the family solicitor, who vainly remonstrated with Mrs Wilson on her unreasonable and selfish attitude. In point of fact the pursuer, who is forty-six, remained unmarried till his mother's death though he was then on the point of being married.

The defender, Miss Hovell, was a servant with the pursuer and his mother for about two years before they left Renton, and she then went to Australia, where she is still resident.

On 22nd July 1915 Mrs Wilson wrote to Mr Stirling, the family solicitor in Johnstone, saying that she wished to see him when she went to Johnstone, and remarking—‘I wrote a letter a few years back stating my wishes, but I wish to make sure that it will stand law. I find now more reason to hold to my first wish than to change.’ Mr Stirling wrote in answer suggesting that she might put her wishes in writing and send them to him, so that he might put them into appropriate shape; but she neither replied nor visited him that year. On 2nd August 1916, however, she called on him and discussed the making of a will. The entry in his ledger is—‘Long conference with you on proposal for a settlement—1 hour.’ She was specially interested to ascertain the extent of her sons’ legal rights. Mr Stirling had difficulty in getting definite instructions from her, and when she left he asked her to note down in writing what she desired and send it to him, whereupon he would send her a draft will for her consideration. The next communication which he received from her was the letter of 26th November 1916 above quoted with the document now in question. Treating the document as the notes which he had expected, Mr Stirling drafted a trust-disposition and settlement, which he sent her with a letter, dated 30th November 1916. This draft she never returned to him, but he kept a copy of it in the form of a rough draft. In substance the draft gives effect to the bequest expressed in the document, but it adds a bequest to the sons of their legal shares of the testator's estate, a reference to the document for the reasons for the restriction of her sons’ interests, and a nomination of trustees and executors. In the accompanying letter Mr Stirling explains that the bequest may be omitted, but he puts the nomination of trustees and executors as a necessity. Mrs Wilson did not reply to this letter, but on 10th August 1917 she again called for Mr Stirling with the draft in her hands and explained that it would not now do because Miss Hovell was in bad health and could no longer act as her companion, and also because her second son was married. She left without giving any further instructions on the footing that she would consider the matter further and write Mr Stirling with the

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amendments which she desired. She never, however, referred to the matter again though she corresponded with Mr Stirling about other matters; nor did she ask for the document which remained in Mr Stirling's possession when she died. On 28th September 1921 Mrs Wilson opened a correspondence with another solicitor—Mr Milne, in Glasgow—the moving cause obviously being the pursuer's approaching marriage. On 3rd October 1921 she wrote to Mr Milne saying—‘I want the little I have disposed of in such a way that the law would not step in afterwards and alter,’ and after a short but comprehensive statement about her family and circumstances, she adds—‘As neither of my sons seem disposed to have the care of me if I live to require it, I wish to make some reward to whoever may stand by me. Will you please let me know what I can do, or what I might not do.’ Mr Milne wrote a long answer on 19th October, but Mrs Wilson died without replying. The pursuer carefully searched her repositories after her death, but found nothing of a testamentary character.

If the validity of the document had to be determined solely on a consideration of the writing itself and the letter which accompanied it, I think it would present a difficult question. On the one hand the document is ex facie unexceptionable as a will. The letter of 26th November 1916 refers to it as a will. It shows that the substance of the document had been long and carefully considered by the writer, and its terms suggest that but for a doubt as to the legality of excluding her sons from her succession the writer might not have applied to her solicitor at all. The letter is at least capable of being read as neither contemplating nor instructing the preparation of a formal will by the solicitor unless it was absolutely necessary to make a bequest to the sons, and the mere fact that the writer of a document in testamentary form contemplates that it may be insufficient and may have to be superseded is not inconsistent with its being treated as a proper testamentary document if no alteration is required— Scott v. Sceales, 2 Macph. 613. On the other hand I think it is evident that the document was written, not with standing the date on it, for the purpose of being sent to the solicitor. The writer says that it is ‘the substance’ of what she had already twice written out, and this I think implies that it was not itself one of the documents previously written out. In the next place, I think it is clear that the writer contemplates that her solicitor may make a will. After referring to her sons' rights she says—‘This I want all made correct at the earliest date,’ and after referring to her reasons for excluding her sons she says—‘I wish that retained in my will,’ and promises to obtain any further information which the solicitor may require. The mere fact that the accompanying letter refers to the document as ‘this will’ is not, I think, conclusive. A similar point occurred in Munro v. Coutts, 1 Dow 437. In these circumstances, if the question whether the document was meant to be treated as a will or merely as a memorandum of instructions to make a will depended on the document and accompanying letter alone, I think that there would be great force in the argument that the document was ex facie a will, that the accompanying letter did not clearly impress on it the character of mere instructions but simply raised a doubt, and that such doubt was insufficient to prevent the document from receiving effect according to its terms. The rule as to the burden of proof in such a case may well be different from that expressed by Lord Selborne in Hamilton v. White (9 R. (H.L,) 54) as applicable to a case where the doubt arises on the face of the document itself.

But then I think that the history of the present document is of material assistance in ascertaining its true character. According to Mr Stirling's evidence the document was sent to him in pursuance of an arrangement between him and Mrs Wilson in the previous August that she should send him a written note of what she desired in order that lie might prepare a draft will for her consideration, and he did prepare and send her a draft will accordingly with a letter explaining that it was not legally necessary to include an express bequest to her sons. If, as it was maintained for the defender, Mrs Wilson only intended her solicitor to make a will if an express bequest to her sons was necessary, she would naturally on receipt of Mr Stirling's explanation have said so, and referred to her own signed document as in that view sufficient for her purpose. But instead of doing so she retained the draft and brought it back with her for further discussion with her solicitor when she visited him the following year. Equally significant was her attitude on the occasion of the visit last referred to. She explained that for various reasons, one of which related to Miss Hovell, the draft would not do, and left with the expressed intention of further considering it. Now it must be kept in view that the substantive provisions of the draft were the same as those in the document, and the circumstances which in her view necessitated an alteration of the former would equally necessitate an alteration in the latter. But she neither asked for nor referred to the document. Nor did she do so during the next four years, though she was in communication with Mr Stirling about other matters. These facts appear to me to indicate that she attached no importance to the document. Finally, I think that her correspondence with Mr Milne in 1921, and particularly her letter of 3rd October 1921, is not consistent with a belief on her part that she had executed an operative will.

Putting the evidence together I think it yields a fairly reliable conclusion that the document under consideration, though framed in terms which would have made it an operative will if it had been found in the writer's repositories, was in fact written and sent by her to her agent, and was treated by her, as it certainly was accepted and treated by her agent, as a memorandum

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of instructions to make a will and nothing more. In some respects the case is like Scott v. Sceales ( cit. sup.), where by a majority of three to two, including the Lord Ordinary, the Judges affirmed the testamentary character of the document; but there was nothing in Scott v. Sceales corresponding to the extrinsic evidence which in my opinion takes the present case within the class of authority illustrated by Munro v. Coutts, Forsyth's Trustees v. Forsyth, and Sprot's Trustees v. Sprot ( cit. sup.).

I shall therefore grant decree as craved.”

The defender reclaimed, and argued—Proof should not have been allowed in the present case, and the defender was not precluded from contending now that proof should not have been admitted—Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 52; C.A.S., C, ii, 5; Stewart v. Clark, 1871, 9 Macph. 616, 8 S.L.R. 402; Paterson v. Paterson, 1897, 25 R. 144, per Lord Young at p. 159 and Lord Kincairney at p. 178, 35 S.L.R. 150; Macvean v. Maclean, 1873, 11 Macph. 506, 10 S.L.R. 312. The Lord Ordinary had only repelled the defender's fourth plea-in-law in hoc statu. The averments of the pursuer were irrelevant, and the Lord Ordinary ought to have dismissed the action. In the present case the defender founded on an unambiguous document which was clearly of a testamentary character. There was no qualifying heading attached to it, such as the word “draft” or “rough,” which might lead to the inference that it was not intended as a will— Forsyth's Trustees v. Forsyth, 1872, 10 Macph. 616, 9 S.L.R. 367; Lowson v. Ford, 1866, 4 Macph. 631; Sprot's Trustees v. Sprot, 1909 S.C. 272, 46 S.L.R, 161. The covering letter did not necessarily infer that the will was sent merely as instructions. The presumption that it was a valid will could only be displaced by absolutely conclusive evidence that it was so sent, and this could not be done. The terms of the covering letter showed, not that it was not meant as a will, but that the testatrix had doubts whether it was legal, and that she wished it made so— White v. Hamilton, 1881, 8 R. 940, 18 S.L.R. 676, 9 R. (H.L.) 53, 19 S.L.R. 688; Munro v. Coutts, 1813, 1 Dow 437; Scott v. Sceales, 1864, 2 Macph. 613. There was not much difference between the laws of England and Scotland on the subject before the passing of the Wills Act— Torre and Others v. Castle and Others, 1836, 1 Curt. 303, 2 Moo. P.C.R. 133, at p. 154; Barwick v. Mullings and Others, 1829, 2 Hag. 225, at p. 226, per Sir John Nicholl; Mitchell v. Mitchell, 1828, 2 Hag. 74; King's Proctor v. Daines, 1830, 3 Hag. 18; Philipps v. Thornton, 1831, 3 Hag. 752. An indication of an intention to make a more formal will did not necessarily invalidate an informal one already made— Gattward v. Knee, [1901] P. 99. If the covering letter made it quite clear that the document was not intended to be a will, this might throw light on the will. When, however, the covering letter, as in the present case, was ambiguous, extrinsic evidence to elucidate the ambiguity was not admissible— Ferguson-Davie V, Ferguson-Davie, 1890, 16 P.D. 109; Taylor's Executrices v. Thom, 1914 S.C. 79, per Lord President Strathclyde at p. 84, 51 S.L.R. 55; Robb's Trustees v. Robb, 1872, 10 Macph. 692; White v. Hamilton (cit. sup.). The document in question was a duly executed will and should receive effect— Stirling Stuart v. Stirling Crawfurd's Trustees and Executrix, 1885, 12 R. 610, 22 S.L. R. 391. The document must be presumed to be of the date it bore—Con veyancing Act 1874 (37 and 38 Vict. cap. 94), sec. 40. In the present case the onus on the pursuer was so great as virtually to exclude extrinsic evidence, or at least to require conclusive proof. This, however, had not been adduced— Chalmers v. Chalmers, 1851, 14 D. 57, was also referred to.

Argued for the pursuer—The Lord Ordinary had finally decided the question of proof. Section 52 of the Court of Session Act 1868 was to be read subject to the provisions of sections 27 and 28 of the same Act. According to section 28 the matter was now finally concluded, and section 27 was now superseded by C.A.S., C, ii, 4— Copeland v. Lord Wimborne, 1912 S.C. 355, 49 S.L.R. 280. On the main question extrinsic evidence was not limited to cases where a doubt as to the animus testandi appeared ex facie of the deed. There were two classes of cases on the subject—(1) where the document was impugned on other grounds than the writing of the deceased; (2) where the source of the challenge was something written by the deceased. An illustration of the first class was an averment that the testator had instructed a document to be destroyed— Chisholm v. Chisholm, 1673, M. 12, 320—or an averment that one of the beneficiaries had abstracted it when the testator had asked for it to consider it— Buchanan v. Paterson, 1704, M. 15, 932, both cited in M'Laren on Wills (3rd ed.), vol. i, p. 410. Other illustrations were afforded by the cases of Nichols v. Nichols, 1814, 2 Phill. 180; Lister v. Smith, 1863, 3 Sw. and Tr. 282; Robb's Trustees v. Robb, 1872, 10 Macph. 692. The present case, however, belonged to the second class, where the source of the challenge was something under the hand of the deceased. The cases cited by the defender did not support his argument. It was not possible to distinguish between these cases and one like the present, where the doubt as to the animus testandi of the principal document was created by a second holograph document associated with the other and of later date than it. In cases such as the present, where the second holograph document of even or later date referred to the first in terms which raised a doubt as to whether the first was intended to be a testament, then proof of facts and circumstances ought to be admitted.

At advising—