Scottish Court of Session Decisions

At advising on 20th June 1956,—

LORD PRESIDENT (Clyde).—The facts in this case fall within a narrow compass. The late Sir Robert Beaufin Irving, who was a domiciled Scotsman, died in Carlisle. He left no heritable estate, and the issue in this case is concerned only with the moveable estate left by him. Four days before his death, what purport to be a will and a codicil were notarially executed on his behalf and in his presence by a Scottish notary public in Carlisle General Hospital. Under the will the notary is nominated and appointed sole executor and is declared entitled to charge the usual professional fees for his services. It is stated in the case that, if the execution of these deeds had taken place in Scotland, the documents would have been null and of no effect, but it is admitted that the documents were validly executed according to the law of England, and would be admitted to probate in England. The whole question in the case turns, in my view, upon the meaning and effect of this latter admission.

It was contended that Scots law alone was relevant, and that, judged by Scots law, confirmation must be refused. But, in my opinion, this is not so. Under section 2 of the Wills Act, 1861, a will made in the United Kingdom shall as regards personal estate be held to be well executed and shall be admitted in Scotland to confirmation if the same is executed according to the laws in force in that part of the United Kingdom where the same is made. On the admission of parties this will was so executed and it follows that it can be admitted to confirmation. But this does not determine the first question put to us in the case, which is whether the documents purporting to be the will and codicil of the deceased are valid and of effect. There is no admission in the case as to the effect of probate in England and as to whether it can ever exclude an appeal to the law of the domicile of a deceased person in determining the validity or effect of his settlement. In Scotland confirmation certainly would not do so, and it would seem that English law is to the same effect—see Cheshire on Private International Law, (4th ed.) pp. 524, 525. But this aspect of the case was not argued to us and we cannot therefore return either a positive or negative answer to the first question. Parties were agreed in asking us not to answer question 2; and, as their object in bringing this case was to determine whether or not the deeds in question can be admitted to confirmation, the appropriate course seems to be for us not to answer the questions in the case, but to make a finding that, as the deeds were validly executed according to English law, they can be admitted to confirmation in Scotland.

In making this finding we are not to be taken as affirming that the will is valid and of effect, and in particular that the clause providing for remuneration to the notary can be enforced. It may be that in the present instance the point may never arise, and in the absence of the proper contradictor as a party to the case we certainly could not determine it now. Indeed it may well be that a decision on this matter would involve a reconsideration of the decisions in Ferrie v. Ferrie's Trustees and Finlay v. Finlay's Trustees, which appear to carry the consequences of the disqualifying interest of the notary to the length of totally annulling the whole settlement instead of merely depriving of any force or effect the clause which creates the disqualification.

LORD CARMONT .—I am of the same opinion.

LORD RUSSELL .—To give validity to a legal instrument it is necessary that it should be signed, sealed or otherwise authenticated by the granter in strict compliance with the statutory solemnities required by our law. The due performance of these statutory solemnities in the case of a deed is generally called its execution. A deed executed in accordance with the requisite solemnities is probative, in that it produces such a legal presumption of its authenticity that it stands effective in law until reduced. As was stated by Lord Curriehill, "When a deed appears with the prescribed statutory solemnities on its face, these solemnities are such credentials of its authenticity as to create a legal presumption of its genuineness, without any other evidence, and the public are to take it as carrying with it sufficient evidence that it is the deed of the party by whom it professes to be granted." In the words of Professor Menzies, "Solemnities are thus the legal tests of the validity of deeds." It follows that a deed which lacks any of the necessary solemnities is inchoate and null—Dickson on Evidence, vol. i, par. 674. In the case of testamentary writings "subscription by the testator is indispensable to the validity of a will, for it is the unique token of completed testamentary intention—Taylor's Executrices v. Thom —and notarial execution is the equivalent of such subscription" (per Lord President Cooper in Hynd's Trustee at p. 119.)

In the present case the testamentary writings under consideration bear to have been notarially executed in England. It is agreed by the parties that in fact these writings, executed notarially on behalf of a domiciled Scot, who died possessed of moveable estate, were validly executed according to the law of England, and could be admitted to probate in England-the testator having been too weak to sign the documents, which were thus authenticated on his behalf in a hospital in England some four days before his death. The Wills Act, 1861,by section 2, enacts that every testamentary writing made within the United Kingdom, if executed according to the forms required by the laws in force in that part of the United Kingdom where the same is made, shall, as regards personal estate, be held to be well executed. The provisions of that statute appear to be declaratory of what was previously the common law of Scotland as evidenced by the Whole Court case of Purvis's Trustees, decided some few months before the statute was passed. The case concerned the validity and testamentary effect of testamentary writings executed in India by a gentleman who died a domiciled Scotsman. By a unanimous decision of the Whole Court it was held that these testamentary writings were, if valid by the lex loci actus, effectual testamentary writings to convey moveable property in Scotland. In M'Laren on Wills and Succession, p. 303, it is stated that "in the case of Purvis's Trustees v. Purvis's Executors it was determined, on a reference to the whole Court, and after elaborate argument, that a will executed in conformity with the requirements of the lex loci actus was not invalidated by reason of the subsequent change of domicile of the testator. This appears to be a necessary deduction from the proposition that the will is validif authenticated in the manner required by the laws of the place in which it is executed." (My italics.)

The parties to this case are agreed that, if the testamentary writings had been executed in Scotland, they would be null, void and of no effect, in respect that the person acting as notary had a disqualifying interest. That interest, arising from his being given by the testator the right as executor nominate to charge professional fees for his services, would clearly disqualify him from executing in Scotland these testamentary writings, in accordance with a well-established principle recently reaffirmed in such cases as Finlay v. Finlay's Trustees and Gorrie's Trustee v. Stiven's Executrix . In my opinion, the effect of such a disqualifying interest in the person who carries out in Scotland the notarial execution of a will is to invalidate the execution, and the will is accordingly unsubscribed and unauthenticated. Founding on that principle, applicable to a will executed in Scotland, the second party argued that the testamentary writings in the present case, although validly executed in England according to the law of England, must nevertheless be held to be null by reason of the notary's disqualifying interest. It was maintained that, although the execution in England was formally valid, validity of the writings is destroyed by reason of the disqualifying interest of the person who executed them for the testator—as is provided by the law of the testator's domicile. I am unable to accept that contention as well founded. It seems tome that, if a testamentary writing is well executed in England in accordance with the lex loci actus, it is a properly authenticated writing as regards personal estate, and falls to be accorded recognition by the Scottish Courts as the declared will of the deceased. I venture to record my respectful agreement with a sentence from the opinion of Lord Penzance in Pechell v. Hilderley, viz.:

"I am of opinion that in determining the question whether any paper is testamentary, regard can be had to the law of one country only at a time, and that the mixing up of the legal precepts of two different countries can only result in conclusions conformable to neither."

I consider accordingly that the testamentary writings in question, being well executed in England according to English law, must be received and acknowledged as expressing, quoad moveable estate, the testamentary intentions of the testator. Whether every trust purpose or instruction expressed in them is or is not to receive effect will be later determined by the law of the domicile; and the writings, although received and acknowledged as properly subscribed, remain open to challenge on such grounds as containing bequests that are void from uncertainty or contra bonos mores, or that the testator was not of sound disposing mind, and the like. It seems possible to visualise such a possible ground of challenge in respect of one of the directions given by the testator, viz., that by which the executor-nominate is authorised to charge professional fees for his services in carrying out his executorial duties—he being a Scottish solicitor by whom in England the testamentary writings were executed as aforesaid. Neither party to this case has raised or argued that question. If it had been raised, I should, as at present advised, have been disposed to favour the view that in the circumstances that direction ought not to receive effect, as being struck at by the principle of Scots law which prohibits a trustee from acting as auctor in rem seam; and I do not consider that the ratio of the decision reached in such cases as Ferrie and Finlay is such as would necessarily preclude the Court from so holding. Whether or not, I agree that the proper course in the circumstances of this case is to pronounce a finding in the terms proposed by your Lordship.

LORD SORN .—If this will had been made in Scotland and its validity had to be determined solely by reference to our law, there is no doubt that it would be invalid. By a series of decisions, of which the most recent are Finlay v. Finlay's Trustees and Gorrie's Trustee v. Stiven's Executrix, it has been decided, in effect, that a notary who executes a will on behalf of a testator must be completely disinterested, and in the present case the notary had an interest in respect that he was appointed executor with a right to charge professional fees for his services. The effect of the existence of an interest on the part of the notary is to render the execution of the will invalid. The Lord President (Cooper) so puts it in Finlay'scase (at p. 24):

"… where a will is notarially executed by a notary whose partner in a solicitor's business is appointed in the will as a trustee, and where the will contains the now familiar clause authorising the employment and remuneration of a trustee as law agent of the trust, then that notary has a disqualifying interest which invalidates his execution of the deed."

Our law requires execution by a qualified notary, and execution by an unqualified, or disqualified, person is no execution at all. In Gorrie's case Lord Mackay regarded the will as being in the position of a will unauthenticated by a signature, saying (at p. 14):

"This will, in my opinion, bears no signature; and that just because the would-be testatrix did not find a qualified public officer…who was not completely ‘disqualified’ in the sense above."

If there was any room for doubt that this is the true significance of a disqualifying interest, it would be removed by a reference to the case of Ferrie v. Ferrie's Trustees . In that case the Court, having held that there was a disqualifying interest present, went on to consider what the effect of that was to be. It was argued that something less than nullity should result and that it would be enough to strike out the benefit from the will, or to remove the notary's name from the enumeration of trustees. In rejecting this argument, all the members of the Court made it plain that they did so on the ground that the presence of a disqualifying interest invalidated the execution of the will. Authentication by a disqualified notary was the same thing as no authentication and, accordingly, the whole deed was null and void. In view of this authoritative decision it would seem to follow that, when it is said in later cases, such as Finlay,that the effect of disqualification is to render the will null and void, the meaning is that the will is a nullity because it has not been properly executed.

In the present case the will was made not in Scotland but in England, and this opens the way for the contention that it should be treated as validly executed, so far, at any rate, as moveable estate is concerned. We are not told in detail what the law of England is on this matter, but there is an agreed finding, which I think we must accept, to the effect that the will and codicil are validly executed according to the law of England and would be admitted to probate there. This we must take to mean that the law of England does not require complete disinterestedness on the part of the person who acts as notary or, at least, that it does not treat the presence of an interest as invalidating the execution; with the result that the will is well executed there notwithstanding Mr Sutherland's interest under it. The contention of the first party is that, being validly executed in the place where it was made, the will should be treated as validly executed here. The contention is based both upon our common law and upon the Wills Act, 1861, which is generally understood to have been merely declaratory, so far as concerned Scotland, and I think the contention is right. As regards the common law, the leading case is Purvis's Trustees Snow v. Purvis's Executors . In that case a domiciled Scotsman had made a will in India and I think the rubric accurately summarises the effect of the opinions when it states as the finding of the Court "that the testamentary writings executed in India were, if valid by the lex loci actus, effectual testamentary writings to convey moveable property in Scotland." In the opinion delivered by the consulted Judges, at p. 822, it is held to be settled law "that such writings are receivable here as valid or authentic expressions of testamentary will, if executed according to the formalities which would make them valid as wills or testaments in the country of execution." Of course the effect of compliance with the lex loci actus does not go beyond setting up the will as a validly executed one. In a later part of the same opinion there occurs this passage (p. 823):

"It is necessary here to attend to the distinction between the operation of the law of the place of execution as authenticating the writing, and its influence in giving practical effect to the deed upon the property or succession of the deceased. The law of Scotland receives a foreign instrument as a good expression of a testator's will, if the writing be authenticated according to the custom of the place of execution. But when the writing has been so received as a good expression of will, it is another question, depending on different considerations, how far it will prove effectual for its purpose."

The will has to be accepted as well executed, but that is as far as it goes. If the Wills Act is referred to, it seems to me that the same result is reached. That statute enacts that a will such as this "shall…be held to be well executed, and shall be admitted…to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made." We have a finding to the effect that this will was validly executed according to the law of England and I think we are therefore bound to hold that it is "well executed." The opposite view invites us to have regard to the law of the domicile and, because of the existence there of a rule in the law appertaining to execution which was not complied with, to hold that the will was not well executed. To do this would seem to me to be contrary both to the terms of the statute and to the common law that preceded it. Nor would it seem to accord with what, in Purvis's Trustees, was indicated to be the underlying reason for recognising the efficacy of the lex loci actus in the matter of execution. A domiciled Scot making a will abroad might find it difficult to be advised as to the forms and solemnities required by the law of Scotland, but he should have no difficulty in being advised how to effect a valid execution according to the law of the place where he happened to be. In the present case the person who acted as notary was a Scottish solicitor, but we must, I think, regard this as a fortuitous circumstance, and decide the case in just the same way as we would had the person been an Englishman conversant only with English law. Such a person would know only the requirements for good execution in England, and (if our information as to the law of England is correct) would not be debarred from acting by the presence of an interest in the will. If the opposite view is correct, such a person would have to acquaint himself with the Scots law of notarial execution and see that he was qualified, or not disqualified, under that law before being in a position to effect a valid execution. It was, as I understand it, to prevent this kind of thing that our common law rule was adopted, and that, of later date, the Wills Act was enacted. The meaning of the rule seems to me to be that, so far as the question of proper execution is concerned, we may look to the law of the place where the will was made and, if we find it to be properly executed according to that law, we must treat it as a properly executed will here. I do not think we are entitled to impose any further test by referring to the law appertaining to execution in this country; we must look only to the law of the place, if the testator's representatives choose to invoke that law.

The argument advanced by the second party against the view which I have adopted seems to me to put too narrow a construction upon the rule of Purvis's Trustees and upon the terms of the Wills Act. It was argued that proof of the fact that a will had been validly executed according to the law of the place should only be accepted as showing that it had been made in the form prescribed by that law, and that objections to the validity of the execution based upon the law of the domicile, other than objections as to form, were not precluded. The argument is ingenious but, in my view, unsound. What the rule contemplates is proof not only that a will was madeaccording to the local forms, but that it was executedaccording to those forms. If that is proved, the Court of the domicile accepts and gives recognition to all that is proved—not only that the forms have been complied with, but that there has been a valid act of execution. It is not only the compliance with outward forms that is in question but the performance of a juridical act—as is apparent from the phrase lex loci actus. In the same way the Wills Act 1 refers not to wills "made" according to the local forms but to wills "executed" according to them. Nor is it easy to be persuaded that the Act intended to reserve to the Court of the domicile a supereminent right to scrutinise the act of execution when it peremptorily enacts that such wills should be "held to be well executed."

While we are obliged, for the reasons I have given, to accept this as a well executed will, I think there is a question whether we should countenance the clause which, displacing the ordinary rule that trustees must act gratuitously, empowers Mr Sutherland to charge the usual professional fees for his services. The point was not argued before us, but nevertheless it seems to me to be pars judicis to take notice of it. Our law frowns upon a notary acting when he has an interest under the will, and Mr Sutherland, a Scottish solicitor, must be presumed to be aware of this. Had the will been executed in Scotland instead of England, we should have expressed our disapprobation by holding that it was badly executed and of no effect whatever. As it is, we are precluded from holding that the will is badly executed, but this does not mean that we could not express disapprobation in another way. The question whether Mr Sutherland can invoke the clause as effectively entitling him to charge professional fees is not before us, but, if it was, my own inclination would be to hold that, in the circumstances, it should be treated as invalid.