Scottish Court of Session Decisions

At advising on 26th March 1954,—

LORD PATRICK .—Mrs Constance Tupper died on 30th December 1952. She was a widow and had no issue. She left heritage valued at £2400 and moveables valued at some £197. The second party to the case is her heir-at-law, and the third parties are her heirs in mobilibus. They maintain that she died intestate. She certainly left no will of any kind, unless it be the document upon which the first party relies in support of his claim to the whole estate. That document is a letter which she wrote on 17th May 1936 and despatched to her sister, the mother of the first party. The letter is wholly in the handwriting of the deceased, and the signature "Connie" is also in her handwriting. By that name she was known to her said sister and other relatives, and that signature was the usual and ordinary form in which she signed letters which she wrote to them. The letter contains much news and gossip, but it also contains the following:—

"You will wonder what on earth the enclosed card is. Well, to-morrow I am going for an excursion to Keswick and have taken out the Insurance. Take care of the Card and if I'm killed Billy will get £1000. If I'm injured I get £8 for 26 weeks. By the way while speaking of dying! Should anything happen to me, (which it will one day) I haven't made a Will, but everything I have is for Billy. Knowing that he will do the right thing."

There are other expressions in the letter which indicate that "Billy," the first party, was particularly the object of her affections, her favoured relative.

The first question is whether the letter is habile to form a holograph testamentary writing. It is no valid objection to it as such that it takes the form of a letter. There are many cases in the books in which testamentary effect has been given to documents in that form. Nor is it a valid objection that the letter was despatched to the addressee, instead of being found in the repositories of the writer after her death. In Scott v. Sceales, such a letter, not found in the repositories of the deceased but despatched to the addressee, was sustained as testamentary. So also in Ritchie v. Whish . The principal objection to this letter, as entitled to be treated as a holograph will, came to be that it was signed simply by the Christian name of the writer, "Connie." It was said that the subscription to a holograph will must be in the form which the subscriber generally used in signing business documents. For this proposition no authority was quoted, save a single expression in the opinion of Lord Craighill in Russell's Trustees v. Henderson, where he spoke (at p. 285) of "the want of a signature" in relation to a letter which was signed only with a Christian name. The case has been described as "very special" by Lord Dundas (at p. 84), and was much criticised by Lord Johnston (at p. 87), in Taylor's Executrices v. Thom, but the critical thing so far as this case is concerned is that in Russell's Trusteesthere was no proof that the writer of the letter was in use to sign letters merely with her Christian name. Now, in Speirs v. Home Speirs, a holograph letter, subscribed only by the granter's initials, was sustained as a valid testamentary writing, it being matter of admission that the granter "frequently signed letters by adhibiting her initials." The authority of this case has not been questioned.

The requisites necessary to constitute a valid holograph writ were prescribed wholly by the common law. The statutes regulating the authentication of written instruments do not apply to holograph writs—Macdonald v. Cuthbertson; M'Laren on Wills and Succession, (3rd ed.) par. 513. Subscription of holograph writs by signature is required for two purposes. The first is to identify the writer. That is fully satisfied here, since the letter and signature are admitted to be written by the testatrix. The second is to signify that what is written above is the concluded expression of the granter's intention, as set forth in the holograph matter which precedes the signature. For this second purpose I am of opinion that a signature by initials or by a Christian name is as effective as a fuller signature, provided only that there be proof or admission that the granter was in use to sign documents of the kind under consideration in the particular shorter form which has been used. Now, in this case it is admitted that the writer of the letter in question was in use to sign her letters to the addressee and others by her Christian name alone. In these circumstances I cannot think that, if she had added her surname to her Christian name as a signature to the letter, it would have been any better certification that what was written above was all she wished to say in that letter and that she had finally decided to say it. I am, therefore, of opinion that the letter was in a form habile to constitute a holograph will. It is often forgotten that the elements which the common law prescribes as necessary apply to all holograph writs, not to holograph wills alone. If one brother wrote a letter to another in the form of an I O U and signed it with his Christian name, in which form he was in use to sign his letters to that brother, it would not be possible to deny effect to the letter as a holograph acknowledgment of debt.

The second question is whether the document is a testamentary disposition or whether it does no more than express an intention to make a will in favour of the first party at some future date. It is expressed to be made in contemplation of the writer's death. It is expressed in terms clearly appropriate to present testamentary provision. It would require some very clear indication of a contrary intention to detract from these clear expressions. I can find no such clear indication of intent contrary to what has been expressed in the fact that the letter deals with other and trivial matters. The fact that the writer does not tell the recipient to preserve the document has more weight with me as tending to indicate that the writer did not intend the document to operate as her will, but I have not found it sufficient to contradict the clear expression of present testamentary provision. The final proposition that the letter did no more than constitute the first party a trustee, for purposes so indefinite that the bequest failed, is clearly untenable. The gift is expressed to be to him as an individual, not as a trustee. The addition of the words "knowing that he will do the right thing" expresses part of the donor's motives for making the gift, but is not a condition of the gift. I propose to your Lordships that the question in the case should be answered in the affirmative.

LORD MACKINTOSH .—I concur in the views expressed by your Lordship in the chair.

As I see the matter, two closely interrelated questions arise in this case, viz., (1) whether the letter sent to the sister in 1936 and signed at the end "Connie" is sufficiently authenticated to enable it, or part of it, to be treated as a holograph will, assuming that the contents of the letter or some part of them are found on examination of their terms to be expressive of present testamentary intention, and (2) whether, assuming that the letter has been sufficiently authenticated to enable it to be treated as a holograph will, the contents thereof or part of them are unequivocally expressive of present testamentary intention, and are not, for example, merely a declaration of a testamentary intention to be carried into effect at some future date.

In my opinion, both these questions fall to be answered in the affirmative. As regards the first of them, I think that the present case is a fortiori of Speirs v. Home Speirs, where, it being admitted that the lady in question was in the habit of subscribing letters by the use of her initials only, the Court held without difficulty that a letter written wholly in her handwriting and bearing only her initials at the end was sufficiently authenticated to enable the writing to be treated as a valid will. The case of Home Speirs was before the Court in the seven-Judge case of Taylor's Executrices v. Thom, and in the exhaustive review of the whole topic of the authentication of holograph testamentary writings which was there undertaken it did not come in for any adverse comment. I think, therefore, that the letter in which the passage now founded on occurs was, when subscribed "Connie," sufficiently authenticated to enable the letter to be treated for all purposes as a valid holograph writing.

As regards the second question, counsel for the heir-at-law and the next of kin argued that the fact that the passage founded on as being expressive of testamentary intention was embedded in a long chatty letter dealing otherwise with only trivial matters was a clear indication that the writer of the letter cannot have intended any part of it to be treated as a solemn and serious document such as a will would be, and that the further fact that she took no pains to see that the letter was preserved pointed quite definitely in the same direction. I agree that these two matters do tell against the letter or any part of it being treated as a will, but the case of Ritchie v. Whish seems to me to be authority for the view that, despite its suffering from these disadvantages, a letter such as is here founded on may be treated as being or containing in gremio of it a valid holograph will, provided that the letter or the passage therein particularly founded on is unequivocably expressive of a present testamentary intention. In the present case there can be no question from the language used in the letter that the writer was contemplating the event of her own death and what was to happen to her estate in that event. The words which she uses are that in the said event "everything I have is for Billy." No clearer or more unequivocal expression of her intention as to what was to happen to her estate on her death could, in my opinion, have been made by the writer of the letter, and the language which she uses seems to me to exclude altogether the idea that in this passage of the letter she was merely stating what she intended to do at some future date with regard to the disposal of her means and estate after her death. She was, in my opinion, expressing her fixed and concluded intention as to the destination of her estate in the event of her death. The words "I haven't made a Will, but everything I have is for Billy" mean, in my opinion, that while she had made no formal will she had definitely made up her mind that on her death her whole estate was to go to Billy, and accordingly said so. The writer of the letter lived for a further sixteen years, but, so far as appears, she never by any writing under her hand altered the testamentary intention expressed by her in her said letter.

I agree that the question in law should be answered in the way which your Lordship has proposed.

LORD BIRNAM .—I agree. Two questions were debated before us. The first related to the form of the writing under consideration, and the second to its substance.

With regard to form, counsel for the second and third parties conceded—and in the light of the authorities was bound to concede—that a holograph letter subscribed by the writer of it may receive effect as a testamentary writing. Admittedly the writing in question is holograph of the deceased and admittedly it was subscribed by her. The only attack upon its form was that the signature "Connie" is insufficient because the surname of the writer is omitted. But the letter was written by the deceased to her sister, and "Connie" was the usual and ordinary form in which she subscribed letters to her relatives. That being so, I can see no valid objection to the letter in point of form.

With regard to the substance of the writing it is true that only a small part of it refers to the disposal of the deceased's estate. But that fact by itself—as certain of the cases show—is no sufficient reason for denying testamentary effect to it. The true question is whether the words used by the deceased contain a sufficiently clear expression of her intention regarding the disposal of her estate after her death and whether they were seriously meant. In considering that question it appears to me to be significant that at the time when she wrote the letter the deceased, as she explains, was about to set out for a holiday in the course of which she realised that she might be accidentally injured or killed. She had, accordingly, taken out an insurance policy which provided, inter alia, that in the event of her death by accident her nephew "Billy"—who is the son of the sister to whom the letter is addressed and who is the first party to the present special case—should receive £1000. It is thus evident that in the part of the letter which is relied upon by the first party the deceased was contemplating the possibility of her death within a short time. When, therefore, she goes on to say "speaking of dying, should anything happen to me (which it will one day) I have not made a will but everything I have is for Billy," I see no reason to doubt that this expression of her intention regarding the destination of her estate was seriously made, and its meaning is perfectly clear.

I agree that the question put to us should be answered in the affirmative.