Scottish Court of Session Decisions

LORD HUNTER'S OPINION.—The main question discussed in Procedure Roll was whether or not branch (a) of the first conclusion of the summons was supported by relevant averments. Counsel for both defenders argued that it was not. Counsel for the pursuer argued that it was, and maintained that, had it not been for the withholding by the defenders of an admission of the averment in the second-last sentence of article 3 of the condescendence, the pursuer would have been entitled to decree de plano in terms of the first conclusion. It is admitted by both defenders that the writing dated 18th October 1966, the full terms of which are set forth in article 3 of the condescendence, is in the handwriting of the deceased. The parties are, however, at issue as to whether what bears to be a letter addressed to "Dorothy," ending with the words "Lots of Love, Mum," is a valid testamentary writing. The validity of the letter as a testamentary writing is challenged by the defenders on two grounds, namely, (1) that it is not habile to form a holograph testamentary writing in respect that it was not validly subscribed, and (2) that it is not a testamentary disposition in respect that, as Lord Mackintosh put it in Draper v. Thomason, 1954 SC 136 (at p. 141), its contents are not "unequivocally expressive of present testamentary intention" on the part of the deceased.

I propose to deal first with the question of authentication. It is undoubted that subscription by the testator is essential to the formal validity of a holograph will (Taylor's Executrices v. Thom, 1914 S.C. 79). It has also been said more than once that the requirement of a subscription by the testator at the close of the writing is not a technical rule, but something with which all the lieges are familiar as indicating that a writing is completed and intended to be effectual as a concluded expression of will (see Taylor's Executrices v. Thom, Lord President Strathclyde at pp. 83–4, and authorities there cited). These general propositions do not, however, define the limits of what will amount to subscription, and I am not sure that the problem which arises in the present case is rendered any more easy of solution by saying in everyday language that the document must be "signed" or that there must be a "signature at the end of the writing." The decisions have certainly permitted some latitude as to what will be accepted as subscription or signature in this connection, provided that what is claimed to be the subscription or signature is written at the end of the document. It clearly is not essential that the subscription or signature should consist of a surname preceded by either an initial or initials or a Christian name or names, nor is it essential that the surname should appear at all, or indeed, that there should be comprised in the subscription or signature any of the Christian names or surname written in full. Thus it was held in Speirs v. Home Speirs, (1879) 6 R. 1359, that the initials "H.S." occurring at the end of a holograph writing found in the repositories of the deceased were a valid subscription, these being the initials of the writer and it being admitted that the writer frequently signed letters by adhibiting her initials. In Draper v. Thomason a letter, which had been signed by an abbreviated version of one of the writer's Christian names and despatched to a relative, was held to be validly subscribed, it being admitted that the writer was in use to sign her letters to the addressee and others by her Christian name alone. The letter in the case just referred to was signed "Connie," the first Christian name of the writer being "Constance." If the door is opened thus wide, I see no reason to reject, as not being a valid subscription, the signature of a letter by a familiar or pet name, provided at any rate that it is proved that the writer was in use to sign letters by that name. I do not in principle shrink from such a conclusion, nor from its results, which are, in my opinion, a proper consequence of the liberal approach of the law of Scotland to holograph writings (M'Laren, Wills and Succession, (3rd ed.) vol. i, para. 513, p. 276). Indeed to hold otherwise would, in my opinion, not only be arbitrary and unrealistic, particularly having regard to present-day manners and customs, but would also be contrary to the ratio of Draper v. Thomason as expressed, for example, in the opinion of Lord Patrick at pp. 139–140, to which I refer. In the present case, if the pursuer proves her averments, there is no difficulty about identification. Indeed, for that purpose the signature chosen by the deceased would often be a more certain mean's of identification than a Christian name. Moreover, such a form of signature is, in my opinion, at least as apt to signify that the writing is the complete and concluded expression of the writer's intention as a signature by initials or by an abbreviated Christian name. If it had been suggested to the deceased, or if it were to be suggested to one of the lieges (to adopt the expression of Lord Fullerton in Dunlop v. Dunlop, (1839) 1 D. 912, at p. 921), that the writing set forth in article 3 of the condescendence was unfinished and had not been completed and signed, I am disposed to think that the suggestion would have been and would be greeted with some astonishment. I dare say there are a few still living who can remember elderly relatives who habitually signed family letters, even to their nearest and dearest, by their initial or initials and surname, though not perhaps without being suspected of a degree of eccentricity. But literature, and for that matter the law reports, tell us that, even in the Victorian age, signature of letters on serious subjects by familiar or pet names was not unknown, while I should not think that there are many mothers at the present day who would sign a letter to their daughter, even on a serious business matter, by the same signature as they would normally employ when signing a cheque, a share transfer or an application for a passport.

It was submitted on behalf of the defenders, under reference to the Outer House case of Pentland v. Pentland's Trustees, (1908) 16 S.L.T. 480, that the word "Mum," written at the end of the letter with which the present action is concerned, was not a subscription, but, as the Lord Ordinary said (at p. 481) with regard to the words "Yr loving Mother" in the case referred to, "a mere description of the writer." The writing in Pentland v. Pentland's Trustees was not a letter sent through the post, but a document found in the repositories of the deceased, and it may be that this element, coupled with the lay-out and mode of expression of the concluding words, influenced the opinion of the Lord Ordinary on a point which was not strictly necessary to the decision, particularly as it is not clear from the two available reports, in 16 S.L.T. 480 and 46 S.L.R. 291 respectively, whether or not the word "Mother" was spelt with a capital. A slightly different form of expression and lay-out, for example, "Yours with love, Mother," with the word "Mother" written below the other three words and spelt with a capital, might well have produced a different result, if the writer was in the habit of signing letters to her immediate family thus.

However that may be, the present case is, in my opinion, clearly distinguishable from Pentland v. Pentland's Trustees .Both the lay-out and the terminology of the words at the end of the letter in the present case differ materially from those which were under consideration in the case referred to. Indeed, if the concluding word "Mum" is not a subscription, it is difficult to see what else it could be. It is not a description, and it is certainly not a mark. It is in fact a familiar or pet name, like "Grannie" in many families, "Dad" in others, and "Sonny" in some. It would, in my opinion, be illiberal, not to say pedantic, to hold that, if a grandmother were to write a letter to a grandchild bearing to make a solemn bequest in his or her favour, and at the end, after an expression of affection, wrote the word "Grannie," such a letter was not validly subscribed, even though "Grannie" was the name which the writer had habitually used at the end of letters to her grandchildren. I venture to think that it would be a strange dispensation under which "John Doe," "J. Doe," "J.D.," "John," "Jack" or "Johnnie" would suffice as a subscription, but not "Dad," and it occurs to me that such a dispensation would place those children, who are on Christian name terms with their father, at a considerable advantage over more respectful offspring, perhaps even within the same family. Indeed, the contention of counsel for the defenders, if accepted as sound, would go far to destroy the advantages which our law has conferred upon holograph writings, in the very sort of situations, for example, letters to close relatives, where such writings are most likely to be used for testamentary purposes.

Before parting from the case of Pentland v. Pentland's Trustees, I should perhaps add that I am not committed to acceptance of the opinion of the Lord Ordinary in that case on the first question considered by him at p. 481, since I can conceive circumstances in which the word "Mother" might constitute a valid subscription to a holograph writing. In expressing this opinion I am not influenced by the reference made by counsel for the pursuer to In the Estate of Cook, decd., [1960] 1 W.L.R. 353, since that decision turned on special rules of English law, particularly with regard to signature by a mark, which are based on interpretation of an English statute and which differ materially from the principles applicable in Scotland.

For the foregoing reasons I am unable to accept the defenders' major proposition, which was to the effect that the word "Mum" could in no circumstances constitute a valid subscription to a holograph writing.

Counsel for the defenders further contended that, even if the word "Mum" could in appropriate circumstances be accepted as a valid subscription, proof of the pursuer's averment in the second-last sentence of article 3 of the condescendence would not be sufficient to set it up as a valid subscription in the present case. This argument involved the proposition that proof that the deceased habitually signed letters to one relative in a particular way would not be enough, even if that relative was the person to whom the particular letter under consideration was sent or addressed. When pressed, counsel for the first-named defender maintained that there must be proof of habitual signing in a particular way of letters to at least two persons, although I do not think he conceded that two would always be sufficient. With all respect to counsel, I confess that I find this argument halting in both logic and common sense. It is quite conceivable that a parent might habitually use one name when writing to a particular child, and a different name when writing to another. It is not unknown for a parent to have a special affection for one member of the family, perhaps a child who is disabled or one who has remained longer than the others under the parental roof. A parent might, when sending letters to an only child, habitually sign with a name which he or she never used when writing to anyone else. In such situations the rule contended for by counsel for the defenders could produce arbitrary and even absurd results, and, as a practical matter, might prevent testamentary effect from being given to holograph writings in the very kind of circumstances in which the writer was most anxious to make an effective bequest. No doubt it must be taken as settled by authority that, in cases where what is contended to be the subscription to a holograph writing consists of a name other than the Christian name or names or initials followed by the surname of the writer, there must be evidence sufficient to identify that name as a signature which the writer was in use to write at the close of a completed writing. In the category of completed writings I would include as an important example a completed letter to a member of the writer's family or other close relative or friend. In this connection I use the word "signature" in a sense which would exclude not only a mark, which in Scotland is subject to special rules, but also something which could properly be called "a mere description" as contrasted with a name. It would appear from the opinion of Lord President Inglis in Stirling Stuart v. Stirling Crawfurd's Trustees and Executrix, (1885) 12 R. 610, at pp. 625–6, that even an illegible signature should not be excluded, since his Lordship considered that an illegible signature, not being a mark, would suffice as a subscription to a formally executed deed, provided that the illegible signature was proved to have been written by the granter and to have been the kind of writing by which he was in the habit of representing his name in deeds. In any event, I would not exclude a familiar or pet name, even if such a name had been used by the writer only in communications to a particular individual, least of all in a case where that individual was a member of the writer's family or other close relative.

It was submitted by counsel for the defenders, under reference to Speirs v. Home Speirs and Draper v. Thomason, that the conclusion at which I have arrived was not only unsupported by authority but was contrary to expressions of opinion by certain of their Lordships in both the cases referred to. I do not find myself pressed by any particular difficulty in this respect, since it was natural that the opinions expressed in each of these cases should be related to the particular admissions of fact which were made by the parties. On the contrary, I find support for my view in a passage from the opinion of Lord Patrick in Draper v. Thomason, where his Lordship, in dealing with holograph writs, including holograph wills, gave the following example (at p. 140):

"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 italics are mine, but I would be extremely surprised to hear it suggested that his Lordship was likely to be guilty of incautious or inaccurate formulation of a legal proposition. For the foregoing reasons, I am of opinion that the argument presented on behalf of the defenders on the question of authentication is not well-founded.

I turn, accordingly, to the defenders' argument that the contents of the letter are not unequivocally expressive of present testamentary intention on the part of the deceased. Looking at the terms of the letter as a whole, I have no hesitation in rejecting that argument, and, although the matter is to some extent one of impression, I find difficulty in seeing how a letter in such terms could possibly be regarded as inchoate or as a mere memorandum of intention. I would regard the present case as being on this point considerably afortiori of Draper v. Thomason, where the short passage which was held to have testamentary effect was contained in a "chatty" letter, which was for the most part devoted to news and gossip. The letter with which the present action is concerned bears to have been written after much thought, and from beginning to end leaves a strong impression of serious and concluded testamentary intention, for which express and convincing reasons are stated. It is in the plainest terms expressed to be written in contemplation of the writer's death, and the recipient is enjoined not to lose it. It was, in my opinion, intended by its terms to take immediate effect, and, in marked contrast to Stuart v. Stuart, 1942 S.C. 510, where the letter was in form one of instructions to the writer's solicitors, it was addressed to the very person whom it was the purpose of the writer to benefit. Counsel for the defenders founded particularly on the passage towards the end of the second paragraph of the letter, where the deceased appeared to have in mind that, when the pursuer paid the visit which was contemplated, she and the pursuer could go to Menzies & White and "tell" them. In my opinion, this particular passage suggests that the deceased had it in mind to inform Messrs Menzies & White about something which she had already done, and which was, in diplomatic language, a fait accompli. Quite probably the deceased would assume that, if Messrs Menzies & White were "told," they might suggest the execution by her of some more formal deed, such as an alteration of or a codicil to her trust disposition and settlement, but this was not, in my opinion, in any way inconsistent with an intention that the holograph writing should have immediate testamentary effect, and should continue to have such effect unless and until superseded by some more formal deed. The use of the words "in the meantime," which counsel for the defenders submitted was an indication of the absence of present testamentary intention, appears to me, when read in their context, to suggest exactly the opposite, Moreover, the statement of the deceased that she was not going to say anything "about this" to the two sons, so far from indicating a lack of present testamentary intention, may go some way to explain why she chose the method of holograph writing in preference to a more formal deed, which would have required the assistance of third parties. I am of opinion, accordingly, that the first conclusion of the summons is supported by relevant averments, and that the argument presented by the defenders in support of their pleas to relevancy, so far as directed against that conclusion, has failed in both its limbs.

[His Lordship then dealt with matters with which this report is not concerned.]