Scottish Court of Session Decisions

LORD BIRNAM'S OPINION.—Mrs Elizabeth Cullen, to whom I shall refer as "the testatrix," died on 10th February 1946. She was predeceased by her husband and by her only child, a son, who was killed in the first world war and who left no issue.

In the year 1937 the testatrix instructed her solicitor, who is a partner in a well-known firm of Writers to the Signet in Edinburgh, to prepare her will. A draft will was accordingly prepared, and after being submitted to and approved of by the testatrix the draft was extended for signature, and the will was duly executed by the testatrix on 14th May 1937. This will, which was admittedly a valid and probative deed, was destroyed in circumstances to which I shall afterwards refer, but it has been amply proved and is not disputed that its terms were identical with the original draft which is now produced. After being executed by the testatrix the will was with her consent taken possession of by her solicitor and placed in the safe in his office.

In the year 1945 the testatrix again consulted her solicitor with regard to her testamentary dispositions and expressed the desire to make certain additional bequests. By that time her husband, who had been nominated as one of her two executors in the 1937 will, was dead, and one of the four residuary legatees had also died. By that time also the testatrix herself had become blind. In these circumstances a new will was prepared by her solicitor, and on 4th October 1945, being himself a notary public, he executed it notarially on her behalf. The document then executed was registered in the Books of Council and Session after the death of the testatrix and an extract thereof is now produced. The executors named therein are the two partners of the solicitor who executed the document in his capacity as a notary, and they are given power to allow the usual remuneration to their solicitor, even if of their own number. While, therefore, there is no suggestion whatever against the honesty or good faith of the solicitor in question, this will is admittedly null and void in accordance with the decision of the Court in the recent case of Finlay v. Finlay's Trustees, supra, p. 16. One of the clauses was a clause of revocation of the 1937 will. The solicitor honestly believed therefore that the 1937 will was of no further use and destroyed it. This he did without any direct instructions from the testatrix and without her knowledge, but in accordance with the general practice of the profession when one will has been revoked by another.

In these circumstances the present action has been raised by the surviving executor nominated in the 1937 will. The conclusions of the summons are (1) for the reduction of the pretended will of 1945, (2) for proof of the tenor of the 1937 will which was destroyed, and (3) for declarator that the 1937 will is the last will and testament of the testatrix. The action is defended by two only of the next of kin of the testatrix, who maintain that, in the events which have happened, the testatrix died intestate.

As I have already indicated, the notarially executed will of 1945 was admittedly null and void ab initio. Decree must accordingly be pronounced in terms of the first conclusion of the summons. It is equally clear that the pursuer is entitled to decree in terms of the second conclusion of the summons, because the terms of the 1937 will are not only admitted but have been abundantly proved by trustworthy evidence.

A question of some difficulty arises, however, upon the third conclusion of the summons. For the defenders it is maintained that, as the 1937 will was deliberately destroyed by the solicitor of the testatrix and the 1945 will is admittedly invalid, intestacy is the necessary result. For the pursuer, on the other hand, it is maintained (a) that the testatrix did not herself destroy the 1937 will, (b) that she gave no express authority to her solicitor to do so, (c)that the solicitor had no implied authority to destroy the will, and (d) that, even if the admitted practice of the profession to destroy obsolete wills can be held binding upon their clients (which was not conceded), the practice referred only to cases where a valid will had in fact been executed revoking the earlier one.

In my judgment, the argument for the pursuer must prevail. Counsel for the defenders cited a number of authorities for the proposition that, when a revocable deed has been destroyed, the presumption is that this has been done intentionally and that the deed has thereby been revoked. I do not find such authorities helpful in the present case, because, whatever may be the presumptions affecting the matter and wherever the burden of proof may lie, all the relevant facts have been established beyond any reasonable doubt. I had and still have considerable doubt as to the competency of certain of the evidence led in the proof—particularly the parole evidence as to the instructions given by the testatrix for the preparation of the invalid will of 1945. I admitted the evidence, however, under reservation of all questions of competency, and in my view the evidence, whether competent or otherwise, does not affect the legal result. The essential facts are that the testatrix gave no express instructions for the destruction of the 1937 will and that, while she may have instructed a new will which would have had the effect of revoking the former one, these instructions were not effectively carried out. If the testatrix had died between the date in 1945, when she gave verbal directions to her solicitor to prepare a new will, and 4th October 1945, when the invalid will was notarially executed, I see no reason to doubt that the 1937 will would have been operative as the last written expression of her testamentary wishes. This would have been equally true, in my judgment, even if the solicitor, without express instructions, had taken upon himself to destroy the 1937 will in anticipation of having a new will executed.

It was argued, however, that, although the solicitor had no express authority to destroy the 1937 will, his authority to do so must be implied because he had received instructions to prepare another will revoking the earlier one, and also because his destruction of the earlier will was in accordance with the practice of the profession. With regard to the first of these contentions it seems to me that authority to destroy a probative deed should not readily be implied. In any event, if such authority is to be implied from the circumstances of the present case, it was, at best, conditional upon the valid execution of a new will. As no such will was ever executed, the condition upon which alone the solicitor's authority to destroy the earlier will might have been implied was not purified and its destruction was therefore unauthorised. With regard to the practice of the profession to destroy wills which have been revoked, I am of opinion that the practice is irrelevant to the present case because the 1937 will was not validly revoked. In any event, such a practice, in my judgment, could have no effect upon the testamentary dispositions of the testatrix unless proved to have been within her knowledge. If the reduction of the 1945 will had been the result of proof that the testatrix was then of unsound mind, it seems plain enough that the destruction of the 1937 will by her solicitor—though in good faith and in accordance with practice—would not have deprived that will of legal effect. If that be so, I am unable to see that it makes any difference to the legal situation that the ground of reduction of the 1945 will is not incapacity of the granter but the invalidity of its execution.

I agree with counsel for the defenders that the question at issue falls to be determined upon legal principle, and, in arriving at my decision in favour of the pursuer, I have left equitable considerations entirely out of account. I have the satisfaction of feeling, however, that the conclusion which I have reached is the one that best accords with the equities of the case. If it be competent to look at the instructions given by the testatrix to her solicitor in 1945, it seems clear that, apart from formal alterations on the 1937 will, her desire was to give effect to its terms subject only to the addition of certain legacies. This desire might quite well have been given effect to by a codicil which would have left untouched the destination of the residue of her estate.

I shall accordingly sustain the pleas in law for the pursuer and the first plea in law for the defenders. Quoad ultra I shall repel the pleas in law for the defenders and grant decree in terms of the first three conclusions of the summons.