Scottish Court of Session Decisions

Lord President (Clyde).—The case has for its object the reduction of a codicil, made by a lady of 74 years of age, in the month of August 1907, to her will executed about nine years earlier. The effect of the codicil was to alter the provisions of the former will, which divided the residue of her estate equally between two nephews, and to give the whole of it—except a sum of£2500 which was bequeathed to one of the nephews—to the other nephew. The nephew whose participation in the aunt's testamentary bounty was thus restricted is the pursuer; the nephew who was preferred, and who acted (in his professional capacity of a law-agent) as the aunt's general legal adviser, is the defender.

The Lord Ordinary sent the case for trial by jury on an issue of facility and circumvention. As pled, the case is founded (first) on the defender's alleged use of undue influence in his professional capacity; and(second) on the practice by him of circumvention upon a person who was facile and easily imposed on. The pursuer, we are told, at first proposed an issue of undue influence, but subsequently withdrew it in favour of a single issue of circumvention and facility.

On the reclaiming note two points have been discussed—(1) Do the pursuer's averments relevantly state a case of circumvention and facility apart from averments going only to undue influence? (2) Is proof or jury trial the appropriate mode of inquiry in the particular circumstances of the present case? The defender disputes the relevancy of the pursuer's averments in all their aspects. But he specially maintains that, if relevant at all, the case made against him is so much more one of the alleged use of undue influence in his professional capacity than of circumvention and facility as to justify the adoption of proof rather than jury trial as the method of inquiry—the former method being, as the Lord Ordinary says, that which is recognised as the more appropriate to cases of undue influence as distinct from circumvention and facility—Weir v. Grace, 25 R. 739, (1899) 2 F. (H. L.) 30; M'Kechnie v. M'Kechnie's Trustees, 1908 S. C. 93, per Lord Stormonth Darling, at p. 100.

An examination of the averments in the pursuer's condescendence discloses some remarkable features. It appears that the defender had for a number of years acted as his aunt's business man. He lived and practised in Aberdeen. The aunt lived in Dumfries. His visits to his aunt do not appear to have been frequent; but their relations were those of natural affection, and the pursuer alleges that—as might be expected in the circumstances—the defender had “complete control” of her business affairs, which she left to him, and of which she personally had little knowledge. So far as averment goes, the pursuer accordingly makes out a good case for attributing to the defender a position of influence over his aunt which, like all similar positions, might easily be abused.

The codicil was signed by the aunt on 21st August 1907. It is holograph of her. It is not said to have been prepared by the defender. He was not present when it was executed; and it is not even said that it was sent to him after execution, or that he knew of its existence until after the aunt's death sixteen years afterwards.

The sole alleged connexion between the actings of the defender and the execution of the codicil consists in the averment that, “shortly before its date”, the defender, on one of his occasional visits to his aunt, “discussed with her the advisability of reducing the share which, under her will, she had bequeathed to the pursuer. At the same time he [is said to have] induced her to believe that the pursuer had squandered his means by speculation. In any event, it is believed and averred that he allowed and encouraged [the aunt] to execute said codicil in that belief and influenced thereby, although he knew, and ought to have informed her, that it had no foundation in fact”. It will be observed that it is not said that it was the defender who introduced, on the occasion of this visit, the discussion about altering the will. Further, it is not unfair to observe that the pursuer qualifies the statement as to the defender having induced a false impression in his aunt's mind by a lower alternative averment (introduced by the words “in any event”) that he ought to have disabused his aunt's mind of an impression which she had herself formed.

It may be that a trusted adviser to whom the testatrix looked for guidance had a duty to disabuse her mind—as far as possible—of any impression unfavourable to his cousin which he knew to be unfounded, especially if that impression was germane to a discussion about the division of her residue between her two nephews, of whom the trusted adviser was one—and it is possible that failure so to do might go to prove an abuse on his part of the influence which he naturally had over her. But the averments to which I have referred provide only the narrowest basis for a case of circumvention. I do not myself remember a case of circumvention in which there was such an entire absence of allegations of suasion, pressure, and cajolement as there is here; for even the opportunity—apart from this single meeting—of bringing those arts to bear upon the testatrix is awanting—cf. Horsburgh v. Thomson's Trustees, 1912 S. C. 267.

The pursuer says he believes that at some time or other during the sixteen years between the date of the codicil and the date of her death the testatrix made over to the defender, without consideration, property amounting to£15,000 or thereby, being practically her whole estate; and that the acceptance of these gifts from his aunt was “part of a scheme [on his part] to secure for himself at the death of [his aunt] the greater part of her estate”. These averments, if well founded, may cast a strong retrospective light on the case of undue influence alleged against the codicil. But they are but distantly—if at all—connected with the case of circumvention, which rests on the single interview prior to the date when the codicil was executed.

It is, moreover, a singular feature of the averments regarding facility (in condescendence 5) that they do not assert—as is usual in such cases— that the testatrix was easily imposed on or easily led. They deal generally with her condition in the seventeen years between 1906 and the date of her death. It is said that, as she grew older, she became garrulous and eccentric, was subject to delusions, and “had no proper grasp”of her business affairs; that she was forgetful, and kept money hidden in odd corners, and “believed or pretended to believe that people were taking her money”. But this is a most unsatisfactory averment to support the proposition, which is vital to a case on circumvention, namely, that, at the date of the defender's meeting with his aunt and at the date of the execution of the codicil, she was weak and facile in mind and easily imposed on. For anything the pursuer's averments say to the contrary, she may have been more self-willed and less amenable to either influence or circumvention in 1907 than she had been theretofore.

But, weak as the pursuer's case is on circumvention and facility, there always remains the question of undue influence; and, in view of the bearing of the pursuer's averments on a case founded on the latter plea, I think it is impossible to throw the case out as altogether irrelevant. Moreover, if there is to be inquiry, it seems the safer course to allow both branches of the pursuer's case to be investigated on evidence.

This brings me to the difficult question whether the mode of inquiry, should be by proof or jury trial—difficult mainly for the reason that the Inner House does not, unless for strong reasons, interfere with the discretion of the Lord Ordinary in this matter.

The reason for preferring proof to jury trial in a case where the real issue is one of undue influence (particularly in the performance of professional duty) is that the discharge of professional responsibility is often a matter of very considerable specialty and delicacy—none the less so in the present case because of the personal relationship between the parties— lying rather outside the knowledge and experience of the world possessed by the ordinary juryman. The opposite is true of the problems of human conduct presented by a case of circumvention and facility occurring under the conditions of everyday life.

Counsel for the pursuer maintained that there was no real difference between undue influence and circumvention and facility; and that, according to the authorities referred to in the Lord Ordinary's opinion, cases of the former class ought to be tried by jury as being only a variety of the latter. But I think this is going much too far. The essence of undue influence is that a person, who has assumed or undertaken a position of quasi-fiduciary responsibility in relation to the affairs of another, allows his own self-interest to deflect the advice or guidance he gives, in his own favour. On the other hand, the essence of circumvention and facility is that a person practises on the debility of another whose individuality is impaired by infirmity or age, and moulds the inclinations of the latter, to his own profit. I think it would be extravagant and fallacious to refuse to recognise the distinction between these two different kinds of questions, merely because they are both ultimately referable to the same broad category of fraud. Cases vary infinitely in their special circumstances; and there are no doubt cases in which the holding of a position of influence may be no more than an item of evidence of circumvention, as was held in the case of a nurse in M'Callum v. Graham .But there the averments were thought to raise substantially a case of circumvention and facility, and not a case of the abuse of influence. As Lord President Robertson said in Rooney v. Cormack “the issues appropriate for the trial of a cause must be ascertained by what is the substance of the pursuer's record.” In that cause (which concerned the actings of a professional man) the Court again found the case disclosed on the pursuer's record to be, in substance, one of circumvention and facility and not of undue influence, and were partly moved to that conclusion by the fact that the will alleged to have been impetrated was not one in favour of the professional man. If it had been, the opinions expressed indicate that the case might have been held to fall under the category of undue influence, requiring investigation by proof rather than by jury trial. These two cases are the most important of those cited by the Lord Ordinary in this connexion,

and they seem to me far from concluding the matter in favour of the pursuer. On the contrary, I think the proper mode of inquiry must depend on what we think is the true substance of the case made on record. For reasons which I have already indicated, I think the pursuer's case— on averment—is substantially, mainly, and predominantly, one of the use of undue influence. It may turn out on inquiry that circumvention and facility played a greater part than the averments made in support of them clearly disclose. But, as those averments stand, I think the case must be treated as substantially one of undue influence, and not of circumvention and facility. If so, it would be to run material risk of injustice to the defender to send the case for trial by an inappropriate mode of inquiry; and I think therefore the case is one in which we are compelled to take the unusual course of interfering with the Lord Ordinary's discretion in this matter.

I move your Lordships to reverse the Lord Ordinary's interlocutor, and to remit the cause to him to order proof.

Lord Sands.—I agree. There is a considerable body of authority for the proposition that, where undue influence is exercised upon a facile person, the case may be treated as one of facility and circumvention without averment of any special deception. But with your Lordship in the chair I am of opinion that this case in its present aspect—one does not know what its developments may be—is predominantly one of undue influence in its distinctive form. For the reasons indicated by your Lordship, cases of undue influence have been deemed more appropriate to proof than to trial by jury, and, regarding this case as primarily one of undue influence, I concur in your Lordship's proposal that we should allow a proof, recalling the Lord Ordinary's allowance of an issue.

Lord Blackburn.—The question whether a case should be sent to proof or to jury trial must always depend upon the facts and averments which the pursuer sets out. If he states a case which raises the issue of facility and circumvention, then as a rule the case goes to a jury; if, on the other hand, his averments raise a case of the exercise of undue influence by the defender, then it is now the almost invariable practice that the case should be disposed of by proof before the Lord Ordinary. I agree with your Lordship in the chair as to the complete distinction and difference that there is between these two issues, and I also agree with the views which your Lordship expressed as to the reasons why an issue of undue influence should be tried before a judge rather than before a jury. The Lord Ordinary in dealing with this particular case comes to the conclusion at the end of a long and careful judgment that the case is to be treated as substantially founded on averments of facility and circumvention. If I had been able to agree with that expression of opinion, I should have hesitated to differ from the Lord Ordinary as to the way in which his discretion had been exercised. But in my opinion the averments of the pursuer are almost entirely directed to an abuse by the defender of the influence which he was entitled to exercise upon the testatrix as her law-agent, and averments which amount either to facility or to circumvention are strangely lacking in the case. Such averments as there are of facility are thin, and of circumvention as I understand the meaning of the term, there are none. In these circumstances I think we must deal with the case on the footing that the Lord Ordinary has come to the wrong conclusion as to the character of the averments, and accordingly that we are justified in differing from him as to the manner in which it ought to be proceeded with.

Lord Ashmore.—The Lord Ordinary was disposed to think that the case belonged to the class of cases involving the exercise of undue influence. Issues applicable to that question and to facility, fraud, and circumvention, were submitted by the pursuer, but at the adjustment of issues before the Lord Ordinary the pursuer abandoned his issue of undue influence. In view of the withdrawal of that issue the Lord Ordinary granted the ordinary issue of facility and fraud and circumvention. But the averments upon both heads of the case remain on the record, and, having regard to the state of the pleadings, I am of opinion that the case is not appropriate for trial by jury. In arriving at that conclusion I recognise that not willingly will the Court depart from the general course of sending cases of such a kind to trial by jury. In the circumstances of this case, however, I agree entirely with what your Lordship in the chair has said.