Scottish Court of Session Decisions

At advising on 16th June 1953,—

LORD PATRICK .—[After the narrative quoted supra]—There have been a number of cases in which the Court has considered what testamentary effect can be given to a document of this kind. They commence with Laurie v. Laurie and end with Bridgeford's Executor v. Bridgeford . I cannot put the problem with which the Court is faced better than to quote Lord Kinnear's statement of it in Macdonald v. Cuthbertson (at p. 108):

"If this were a question of intention merely, there would be a great deal to be said in support of the will. But we are not looking at this instrument as a Court of construction for the purpose of ascertaining what the writer intended to effect. The preliminary question, with which alone we are concerned, is whether it satisfies the conditions prescribed by law for the authentication of written instruments. These conditions are prescribed by statutes, and if the statutes are applicable, the only question we have to consider is whether the statutory conditions have been fulfilled or not. But then it has been held from the earliest times, since the statutes regulating the authentication of written instruments were passed, that properly construed they do not apply to holograph writings, which mean, and can only mean, instruments written entirely by one hand, and that the hand of the subscriber. No doubt that definition requires to be enlarged by admitting that instruments may in certain cases be considered holograph, although they may contain other writing than that of the subscriber, but then that has been allowed only in cases in which those additional words which are not in the hand of the subscriber of the document are purely formal or superfluous, so that if they were struck out or disregarded, you would still have a complete expression of the writer's intention. It appears to me therefore that the question whether a document can receive effect as holograph is a mere question of fact; and I am unable to entertain any doubt that a document which is partly written and partly printed cannot by any possibility be holograph, if the printed parts are of any importance at all, because that contradicts the very definition of the word holograph."

This statement is a fuller exposition of the principle tersely stated by Bell (Principles, section 20):

"Holograph writings are wholly or in the essential parts written by the party and subscribed by him."

The Court has never departed from this principle. In the earliest of the cases, Laurie v. Laurie, Lord Cowan, in admitting the document there in question as holograph, said (at p. 242):

"The deed was written with his own hand, excepting seventeen words which are written by his wife, but which are of no materiality whatever."

In the latest of the cases, Bridgeford's Executor v. Bridgeford, the Lord Justice-Clerk said (at p. 420):

"The question to be asked is—Are the essentials of this document to be found in the holograph part? If yes, it is a holograph document; but if any of the non-holograph part is not formal or superfluous, but enters materially into the import of the document, it is not holograph."

And Lord Jamieson put the matter thus (at p. 438):

"The proper method of approach appears to me to be to consider both the writing and the print. If the former contains the essentials of a will, and the latter, but only if the latter, is non-essential or superfluous, effect will be given to the whole instrument as a holograph testamentary writing."

In the cases which intervened between Laurie v. Laurie and Bridgeford's Executor v. Bridgeford I can detect no trace of any departure from the principle. In the application of the principle to particular documents there is room for a difference of opinion on the topic whether all of the print which the Court considered unessential and superfluous was truly so, but the principle stands throughout unshaken.

The document is not authenticated as prescribed by the statutes, and the first contention advanced for the pursuer was that the document should be considered to be holograph of the granter in respect that the written portions contained the essentials of a testamentary disposition of the estate to the pursuer. A recital of the written portions is sufficient to negative that contention, which indeed was not argued with any conviction. They run: Mrs Madge Canch … The Garth, West Linton … to my daughter Enid … Revoke former will … Madge M. Canch … 11th … August … 47 … Madge M. Canch … R. W. Graham Yooll Witness … West Linton." It is impossible to find in these words a disposition of any subject, and the contention must fail.

But the alternative contention for the pursuer was pressed. It so happens that the pursuer is the sole heir ab intestato of the testatrix, and, if the earlier testamentary documents have been revoked, so that the testatrix died intestate, she would succeed to the whole estate of the testatrix. The pursuer contends that the words "Revoke former will" appearing in the document of August 1947 should receive effect as a revocation of the earlier testamentary documents, since these words are in the handwriting of the testatrix and the document is signed by her. The contention is based on a misunderstanding of the doctrine which is applicable to such documents. So much is plain from the judicial opinions I have quoted, and I know of no contrary opinion. The question is whether the document as a whole is authenticated as a holograph writ, so that it can receive effect. It is not whether a part of the document can be found which, ignoring the other abortive provisions of the document, would have received effect as a holograph provision if it had stood alone. A document is not authenticated as a holograph writ if the part not in the handwriting of the granter is not formal or superfluous "but enters materially into the import of the document," as the Lord Justice-Clerk said in Bridgeford's Executor v. Bridgeford . A document is authenticated as holograph and receives effect as a whole, or it is not authenticated at all, and no part of it receives effect. This doctrine is too well established in the law of Scotland to need justification, but its justification is obvious. If the Court set up as effectual part only of the substantive provisions of such a document, it would produce a situation which, as the whole document shows, the granter never intended. It is important to remember that the doctrine is applicable to all documents alleged to be holograph, not to testamentary deeds alone. Can it be supposed that the Court would enforce those parts of a disposition of heritage which were in the handwriting of the granter, leaving important provisions of the document, which were in print, incapable of being enforced? Now, in this document, the printed parts are far from being formal or superfluous. They contain material expressions of the import of the document.

I am of opinion that the decision of the Lord Ordinary is right and should be affirmed. In view of the concluding remarks of the Lord Ordinary I wish to make it plain that, in my view, the majority of the Second Division in Bridgeford's Executor v. Bridgeford departed in no way from the principle I have been considering. In the application of that principle to the document they were considering the majority of the Court thought that the printed material did not enter materially into the import of the document, whereas Lord Mackay, who dissented, thought that it did.

I suggest that the reclaiming motion be refused.

LORD MACKINTOSH .—The first question—and, on the view I take of the matter, the only question—which arises in this case is whether the document No. 11 of process satisfies the conditions prescribed by law for the authentication of written instruments. That. document is a printed form of will with certain of the blanks in it filled in in a handwriting which for present purposes may be taken to be the handwriting of the party who bears to be the granter and the subscriber of the document. The document, though bearing to be duly subscribed by the granter, has had the granter's signature attested by only one witness. It thereby fails to satisfy the statutory requirements for a fully probative deed and in those circumstances can be regarded as the authentic writ of the granter only if it can be held to be a holograph writing—a class of writ to which it has all along been assumed in our law that the statutes regulating the authentication of written instruments did not apply.

Holograph writings, according to Bell (Principles, section 20), "are wholly or in the essential parts written by the party and subscribed by him." The document No. 11 of process plainly is not wholly in the handwriting of the party here in question, viz., Mrs Madge M. Canch, because parts of it consist of printed words, that is, words not written by anybody. Can it then be regarded as having been in its essential parts written by Mrs Canch, assuming as I do for present purposes that all the writing on the document was hers? In my opinion, that question can only be answered in the negative. In order to reach that conclusion I do not find it necessary to do more than point out that the subject of the grant purporting to be made by the document is "my whole estate, heritable and moveable," and these words occur wholly in the printed part of the document, there being no words in Mrs Canch's writing descriptive of the subject of the grant. In the case of Macdonald v. Cuthbertson both Lord President Inglis and Lord Adam founded on the fact that the words descriptive of the subject of the gift or bequest were in print, and not in writing, as conclusive against the document then before them being regarded as being in its essential parts in the handwriting of the maker. Lord Kinnear in the same case said that a document partly written and partly printed cannot by any possibility be holograph if the printed parts are of any importance at all. The later case of Bridgeford's Executor v. Bridgeford does not, so far as I can see, in any way detract from or weaken anything that was said in Macdonald v. Cuthbertson .It emphasises, however, that the proper method of approach in considering hybrid documents of this kind, i.e., documents partly written and partly in print, is not to concentrate wholly on the written portion and isolate it from its setting in the print, but to consider both the writing and the print, and in such consideration to regard the whole document as a holograph writing if, but only if, the printed portion is found to be non-essential or superfluous. From what I have already said regarding the words descriptive of the gift or bequest purporting to be made by No. 11 of process it would seem clear that the printed portion of that document could not be considered to be either non-essential or superfluous or, to use Lord Kinnear's words in Macdonald v. Cuthbertson, of no importance at all. On the contrary the printed portion, in so far as it purported to describe the subject of the bequest, was vital and all-important. In these circumstances the document No. 11 of process, not being in all its essential parts in the writing of the maker, is not a holograph writing and consequently cannot be regarded as the authentic writ of Mrs Madge M. Canch. The whole document is therefore in my opinion of no validity whatever as a testamentary writing. It is just a worthless piece of paper.

Counsel for the pursuer maintained that, even if No. 11 of process could not be regarded as a valid will making a bequest to his client, the document was still a valid testamentary writing of Mrs Canch in so far as it purported to revoke her former settlement of 1942, in respect that, unlike the earlier cases of Macdonald v. Cuthbertson and Bridgeford's Executor v. Bridgeford, the words "Revoke former will" were here in the handwriting of Mrs Canch herself and were signed by her. While I agree that, if the stage when the words "Revoke former will" had to be construed had been reached, the criticisms made by defenders' counsel as to the ambiguity in the meaning of these words would have been of little or no substance, I am definitely of the opinion that no question of the construction of these or of any other words contained in No. 11 of process does or can arise. The document as a whole is an unauthenticated writ, and, accordingly, no question arises of our looking at it as a Court of construction for the purpose of ascertaining what the writer intended to effect by the words "Revoke former will" or by any other words contained in the document. It seems to me to be a hopeless contention to maintain that, although the document as a whole cannot qualify as a holograph writing because it is not in all its essential parts in Mrs Canch's writing, yet a portion of the written part of it can be extracted from its setting in the whole document and treated as if it were a separate holograph writing by the deceased. No. 11 of process must be taken as we find it—it is one document, partly printed, partly written—as such, it is either wholly good as a holograph writing or wholly bad as being an unauthenticated writ. For the reasons given above I hold it to be the latter. It follows therefore, in my opinion, that the cases on revocation referred to by pursuer's counsel are not in point, since the clauses of revocation the effect of which was being considered in all of these cases occurred in validly authenticated testamentary deeds. That is not the case here. I agree that this reclaiming motion fails and that the Lord Ordinary rightly dismissed the action as irrelevant.

LORD JUSTICE-CLERK (Thomson).—I agree. The views expressed by your Lordships seem to me so entirely consonant with the line of authority beginning with Laurie v. Laurie and ending with Bridgeford's Executor v. Bridgeford that it would be superfluous for me to try to add anything to what I said in the latter case.