Scottish Court of Session Decisions

LORD DUNPARK'S OPINION.—[His Lordship gave the narrative quoted supra, and continued]—

The questions which arise are as follows: (1) Are the three admittedly holograph writings of the deceased dated 17th September 1964 of a testamentary character? (2) Are these three writings to be read together as constituting one document? (3) Were these three writings intended by the deceased to govern the disposal of her estate on her death? (4) If so, are they sufficiently authenticated to enable them to be treated together to constitute a valid will?

I answer questions one and two in the affirmative. The addressee, Mr Brooks, is first referred to in the partly printed, partly holograph will dated 26th June 1961, the deceased having written his name and address into the printed clause providing for the appointment of a sole executor. The fact that the purported appointment is invalid in respect that it is neither holograph nor attested does not render it inadmissible as evidence of the intention of the deceased on 26th June 1961. The three writings dated 17th September 1964 must, therefore, be read against that background, and it is clear from the terms thereof that, at the time of writing them, the deceased was relying on the said James Brooks to give effect to her directions for the disposal of her estate on her death. The first of these writings relates to the disposal of furniture and personal effects and contains a direction to Mr Brooks that the three nieces of the deceased husband of the writer were to have the choice of "some pieces of furniture they like." After indicating that, following the death of a cousin, the deceased had not made up her mind who was to get her "special jewellery," she ends the second sheet of this first writing thus:

"However I will try and make a list of what everybody wants is a problem. I don't know where to start first."

The second writing, headed "Sept 17 64' contains a list of legacies. It starts with the words "To Mrs Gerrard," the first of Mr Lowrie's three nieces; then follows a list of furniture and effects and the names of the other two nieces and other persons, each linked with a description of articles belonging to the deceased. This writing is contained in two sheets, neither of which is subscribed, but it leads rationally into the third writing, which contains an intelligible list of pecuniary legatees "and what is left goes to the old and infirm ministers fund." The residue is claimed by the Church of Scotland Trust on behalf of the Aged and Infirm Ministers' Fund. The deceased concluded this third writing thus:

"and about my very jewellery, I can't make up my mind having no one of my relation I think worth giving it to if I havent decided and go quickly it can always go to the aged ministers fund and sold and added to their money. I'II finish this again as I'm going to bed now my pains are bad and making me a bit hazy. So will make out what money I've left another night. M.A.H.L. Sept 17th 64."

While there are no specific bequests made in the first writing dated 17th September 1964, it is of the nature of a preamble to the second and third writings of that date and contains an explanation why Mr Lowrie's three nieces, who were named as joint residuary legatees in the 1961 document, were reduced in the third writing dated 17th September 1964 to pecuniary legatees. The second and third writings are clearly of a testamentary nature and the three writings, all dated 17th September 1964 and found in the said envelope, in my opinion form an apt and coherent scheme of general settlement by the deceased.

Mr Pinkerton for the Crown as ultimus haeres submitted that there was no sufficient connection between the three writings for them to be read together as one document but, for the reasons given, I reject this submission. He also contended that certain passages in the third writing indicated that the deceased did not intend her directions to be final. He founded on the words in the first line "in case I go suddenly and want to finish this another time" and on the passage at the end "if I havent decided and go quickly it [her special jewellery] can always go to the aged ministers fund and sold and added to their money." In my opinion, however, the fact that the deceased contemplated taking her special jewellery out of residue by a subsequent writing does not compel me to construe this document as an unfinished testamentary writing. It is more consistent with an intention that it should take effect as her will subject to modification by any subsequent bequest or bequests of her jewellery. It is clear from the last two sentences that she contemplated adding to the document, but non constat that it was not to take effect pending such addition. It seems to me that the only additions that she had in mind were (i) taking her jewellery out of residue and (ii) "making out what money I've left." This last sentence is certainly ambiguous. I note that in the space left for legacies in the printed form of will she inserted details of her estate with a marginal note headed "Cash and Monies invested up to the Above Date 26-6-61.", and that, at the bottom of the second page of that document headed "Disposal of my Money 26-6-61", she inserted details of her estate headed "1964 Money". I am inclined to think that, when she wrote at the end of the third writing dated 17th September 1964, "So will make out what money I've left another night," she was referring to the amount of her estate as at 17th September 1964. Whatever she meant, that sentence cannot reasonably be construed as an indication that the general settlement that she had just completed was not to receive effect as such if she died before she had "made out what money [she'd] left."

Questions three and four are interrelated, because subscription is of the essence of a testamentary writing (Taylor's Executrices v. Thom, 1914 S.C. 79). A writer who does not subscribe a holograph document of a testamentary nature is not to be accredited with a concluded testamentary intention. The only doubt that I have in this case is whether I am entitled to treat the initials of the deceased as sufficient authentication of these three writings. Everyone is deemed to know that his will must be subscribed. If he does not subscribe, he has not completed the document (see Taylor's Executrices v. Thom, per Lord President Strathclyde at pp. 83–84, and Lord Skerrington at p. 93; also Stair, IV, xlii, 6). In Lorimer's Executors v. Hird, 1959 S.L.T. (Notes) 8, Lord President Clyde summarised the relevant law thus:

"The rigid statutory rules applicable in cases of attestation of deeds, designed to protect parties against fraud, have no place in regard to a holograph document where the writing and the signature are admittedly those of the granter. But in regard to holograph documents of a testamentary character subscription by the granter is essential to satisfy the requirements of a completed testamentary act. Hence it is now well settled that superscription of such a deed by the granter is not enough. Subscription is always required."

The vital question in this case is whether or not the initials of the deceased, admittedly appended by her at the end of the third writing dated 17th September 1964, amount to subscription by her. After some hesitation I have come to the conclusion that I may, and should, hold that they do. In relation to holograph documents the common law does not require a full or normal signature of the writer as his subscription. Initials or the writer's Christian name may be enough (see Speirs v. Home Speirs, (1879) 6 R. 1359, and Draper v. Thomason, 1954 SC 136). In Speirs the deceased, Miss Helen Speirs, left in one compartment of her desk two holograph writings, one on a full sheet and one on a part sheet of note-paper. She had prefaced the first writing with the words "I Helen Speirs now write what I intend to be my final wishes," and thereafter gave directions for the disposal of her whole estate. This sheet was unsigned. The second writing, to which she had appended her initials, consisted solely of the bequest of a small annuity to a servant. It was admitted that the deceased "frequently signed letters by adhibiting her initials." The Court read the two documents together as valid testamentary writings. All the judges were satisfied that the deceased intended these writings to be the final expression of her testamentary wishes. In a short opinion the Lord Justice-Clerk (Moncreiff) made no reference to the mode of subscription, and it may be that both Lord Ormidale and Lord Gifford, although referring to the admission as an adminicle of evidence, would have upheld the validity of these writings without the admission of the deceased's prior use of her initials.

It was argued that, if Speirs was authority for the proposition that no form of subscription was necessary, it had been impliedly overruled by Taylor's Executrices, and that Draper v. Thomason established the proposition that initials should not be accepted as subscription unless there was evidence that the writer was in use to sign by initials documents of the kind under consideration. There being no such evidence in this case, counsel for the Crown as ultimus haeres submitted that there was no sufficient authentication by the writer; indeed the partly printed, partly holograph form of will dated 26th June 1961, signed "Maggie A. H. Lowrie," showed what was presumably the deceased's normal signature. It appears from Lord Ormidale's opinion in Speirs(at p. 1361) that he did not regard initials as "subscription"; but Lord Patrick in Draper(at p. 140) was prepared to treat a signature by initials or by a Christian name as subscription in exceptional circumstances. The question is whether I am bound by Draper v. Thomason to hold that the initials of the deceased are insufficient authentication in this case in the absence of evidence that the deceased signed documents of this kind by initials. I do not consider that I am.

In Taylor's Executrices v. Thom there was no signature of the deceased of any kind at the end of the document in question, only her superscription:

"My last Will Jessie Taylor."

In holding the document to be invalid the Court insisted upon subscription, but was concerned only with the fact, not the form, of subscription as evidence of completed testamentary intention. The only decision reported since 1914 on the form of subscription is Draper v. Thomason . In that case the testatrix died on 30th December 1952. In the absence of any other testamentary writing, a letter, wholly in the handwriting of the testatrix and signed "Connie," dated 17th May 1936 and posted to her sister at that time, was held to be a valid testamentary writing. The letter contained news and gossip and a reference to an insurance policy that the deceased had effected on her life. She went on to say:

"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."

The person referred to as "Billy" was her nephew, son of the addressee. It was admitted that the testatrix was in use to sign her letters to her relatives by her Christian name alone. There was no admission in this case that the deceased was in the habit of subscribing her letters with her initials and it was contended that on the authority of Draper v. Thomason the absence of such an admission or proof was fatal to the testamentary validity of these writings. If that case is authority for the proposition that initials are not sufficient authentication of a holograph writing of a testamentary character without proof or admission that the writer was in the habit of subscribing by the use of initials, then I am bound to hold that the writings in question are of no legal effect. This would be a very unfortunate result, because, on one view, it would leave the earliest document, dated 26th June 1961, standing as the last will and testament of the deceased with the residue divided among Mr Lowrie's three nieces, when the deceased was at pains to explain in her writings dated 17th September 1964 why she had superseded them as residuary legatees. The other view is that submitted by Mr Pinkerton for the Crown, namely, that the deceased died intestate leaving no heirs. I have, however, reached the conclusion that the ratio decidendiof Draper v. Thomason does not force me to hold the deceased's initials in this case to be insufficient subscription.

As the common law does not require subscription by use of a full signature, and initials or a Christian name may in certain circumstances amount to subscription, the question in every case must be whether the form of subscription used signifies "that what is written above is the concluded expression of the granter's intention." These are the words of Lord Patrick in Draper v. Thomason (at p. 140), preceding the expression of his 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." I do not read that proviso as part of the ratio decidendi of Draper v. Thomason . Although both Lord Mackintosh and Lord Birnam concurred with the views expressed by Lord Patrick, neither of their Lordships referred in terms to Lord Patrick's proviso. I do not think that the opinions of Lord Mackintosh and Lord Birnam must necessarily be read as supporting the proposition that a signature by initials or by a Christian name, appended to a holograph writing of a testamentary nature, can never be admitted as subscription without proof or admission that the granter was in use to sign documents of the kind under consideration in the particular form used. They were satisfied on the evidence before them that effect should be given to the signature as subscription.

I am satisfied in this case that similar effect should be given to the initials of the deceased at the end of the third writing dated 17th September 1964, and that for the following reasons. (i) All three writings dated 17th September 1964 were found in the envelope headed, in the handwriting of the deceased, "The Will of Mrs Maggie Anne Heggie Lowrie." (ii) The first and second of the writings dated 17th September 1964 were not authenticated in any way by the deceased. (iii) The earlier letter to Mr Brooks dated 19th January 1964 was not subscribed in any way at the time of writing, although it contains the word "void" in four different places, including the beginning and the end. (iv) The letter dated 17th September 1964 to Mr Brooks opens with the words "Since making my last will." This can only refer to the partly printed, partly holograph document disposing of her money on 21st June 1961. The letter then continues, "I will have to make changes in another will." The terms of the three writings dated 17th September 1964, in my opinion, make it clear that these writings were intended by the deceased to be that other will. (v) It is impossible to give effect to Lord Patrick's proviso in this case, because the deceased had never before subscribed in any form a letter to Mr Brooks, or so far as known to anyone else, of a testamentary nature. There are, therefore, no other comparable documents available. (vi) In the above circumstances the only reasonable inference from the appendage of the initials "M.A.H.L." and the date "Sept. 17th 64," at the end of what is, in my opinion, her last letter of instructions to the man whom she wanted to be her executor, is that the deceased intended her initials to indicate that the instructions given therein were firm and concluded instructions to take effect on her death.

The present case is, in my opinion, a fortiori of Draper v. Thomason in respect that these three writings are wholly testamentary in their nature; they were found in her repositories after her death along with writings of a similar nature which are either incomplete or inconsistent with the later writings; they are each dated 17th September 1964, i.e., within six weeks of the writer's death; and they are in the form of instructions to the addressee for the disposal of her whole estate on her death. Taken together, these factors form a much stronger indication of concluded testamentary intention than is to be found in the facts of Draper v. Thomason and, in these exceptional circumstances, I am of opinion that the appendage of her initials "M.A.H.L.," coupled with the date "Sept. 17th 64" at the end of the third testamentary writing, is sufficient authentication of all three. The provisions of the earlier partly printed, partly holograph will are impliedly revoked by the writings dated 17th September 1964, since the provisions of the later writings are either inconsistent with, or repetitive of, the earlier.

I shall therefore repel the pleas in law for the eleventh defender and claimant, the Lord Advocate, find and declare that the three writings of the deceased dated 17th September 1964 constitute the only valid and effectual testamentary writings of the deceased, sustain the pleas in law for the remaining claimants and rank and prefer them to the fund in medio in terms of their respective claims. Some of the legatees named in these writings have not lodged claims, but the finding that I have made will ensure that the pursuer and real raiser will distribute the whole estate of the deceased in terms of these writings.