Scottish Court of Session Decisions

At advising on 27th February 1976,—

LORD JUSTICE-CLERK (Wheatley).—This is an action of declarator in which the Court is asked to hold that at the time of her death on 27th March 1968 Mrs Agnes Young or Grant had right to the heritable and moveable estate of her deceased husband, John Grant, and that, accordingly, the pursuer as one of her heirs on intestacy has right to a one-third pro indiviso share of the aforesaid estate of the said John Grant. I doubt whether the latter part of this declarator is in proper form, but it makes no material difference to the point which the pursuer is seeking to establish and what would follow thereon, as is evidenced by the averments in the summons, and particularly those in Condescendence 6.

The basic issue in the case is whether the pursuer has established that Mr Grant predeceased Mrs Grant. They both died in a fire in their tenement flat on 27th March 1968. In each case the cause of death was certified as asphyxia due to the inhalation of smoke and carbon-monoxide poisoning. In the event the Lord Ordinary held that the pursuer had failed to prove her case. He did so by the following process of reasoning. He pointed out that neither of the medical certificates shows the precise time of death, and that there was no evidence to establish that, as averred by the pursuer, the body of Mr Grant was found in the kitchen and that of Mrs Grant in the front bedroom. He then went on to say:

"Prima facie therefore it is uncertain which, if either, of the spouses survived the other."

On that basis he went on to consider the provisions of section 31 of the Succession (Scotland) Act 1964 (cap. 41), the standard of proof required of the pursuer thereunder to negative uncertainty, and the legal presumption which would follow from the application of the section in the circumstances of the instant case. After reviewing the opinions of their Lordships in the House of Lords in Hickman v. Peacey [1945]A.C.304 and the judgment of Jenkins J. in Chillingworth v. Bate and Others [1947] L.J.R. 1409 he eschewed balance of probabilities and proof beyond reasonable doubt as evidential standards for the purposes of the section and opted for "evidence which, albeit short of establishing certainty, is sufficiently reliable to warrant a definite conclusion as to which of two or more persons survived the other or others, and thus remove any uncertainty which existed before the evidence was led." Applying that standard to the evidence in the case he came to the conclusion that the pursuer had failed to establish that Mr Grant died before Mrs Grant.

I must confess to sympathy with the Lord Ordinary in his endeavours, even with the assistance of Jenkins J., to extract from the differing, varying, qualified and non-committal views of their Lordships in Hickman v. Peacey an authoritative formula for the standard of proof required to negative "uncertainty." This all the more so since the views expressed in that case were not necessary for the basis of its ultimate split decision. I accordingly turn to consider whether it is necessary to follow the Lord Ordinary in that complicated exercise. The first point to be decided is whether the Lord Ordinary followed the correct course. The pursuer is in petitorio and she set out to establish that Mr Grant died before Mrs Grant. This is a straightforward issue of fact. If she succeeded in that, Mrs Grant's survivance of her husband would bring his estate to her, and that would be included in the estate of Mrs Grant to which the pursuer would have the right of a one-third share. If she failed in that, then prior to the passing of section 31 of the 1964 Act, Mrs Grant's estate, in the circumstances of the present case, would have fallen to the Crown (Drummond's Judicial Factor v. H. M. Advocate 1944 SC 298). Section 31 introduced certain legal presumptions in a case where two persons died in circumstances indicating that they died simultaneously or rendering it uncertain which, if either, of them survived the other. The legal presumption in relation to a husband and wife dying in either of such circumstances does not avail the pursuer, and she does not seek to rely on it. Section 31 was introduced to clarify the position, by way of legal presumptions, when a pursuer had failed to prove survivance. But if a pursuer can establish survivance, the section does not begin to apply. There is then no uncertainty. If, in a case like this, the pursuer fails to establish survivance, then, as the section cannot be usefully invoked, it has no applicability. It thus seems to me that in the circumstances here present we are simply in a Drummond Judicial Factor type of case, where, to use Lord Cooper's phrase therein, the question is one for determination by proof and not by presumption. There is nothing in that case, or indeed in any other Scottish case which I can find, to suggest that the answer to the question would be determined otherwise than by the normal standard in civil proceedings in Scotland, namely on a balance of probabilities on all the evidence.

This approach, namely, of considering in the first place whether the party seeking to establish the order of death has succeeded in doing so by evidence, was taken by Harvey C.J. in In re Plaister 1934 N.S.W. State Reports 547 at p. 552, and having decided in that case that the order of deaths had been established by the evidence he found it unnecessary to resort to or consider the statutory provisions giving rise to presumptions in law when the order of deaths cannot be established. I am accordingly of the opinion that what this Court has to consider is whether the pursuer has proved on a balance of probabilities that Mr Grant predeceased Mrs Grant. The Lord Ordinary has held that she has not. In reaching that conclusion he must be taken as having applied a standard of proof higher than the balance of probabilities. He appears to have proceeded on the basis that the lack of evidence about the times of the respective deaths of Mr and Mrs Grant and where their bodies were respectively found raised a prima facie case of uncertainty. With all due respect to him, I am of the opinion that his approach was wrong. He examined the evidence with great thoroughness, but he applied too stringent a test in reaching his decision. It is therefore open to this Court to re-examine the evidence and reach a decision on it according to the proper test which is whether the pursuer has established on a balance of probabilities what she seeks by her declaratory conclusion, namely that Mr Grant predeceased his wife. As no question of credibility arises we are not circumscribed in our review of the evidence, and as the determination of the issue has to depend on inferences or the lack of them we are in as good a position as the Lord Ordinary to reach a proper result. And by concentrating solely on that approach we do not require to attempt to distil from the speeches in Hickman v. Peacey a properly defined standard of proof in a section 31 case. Before summarising the evidence I feel compelled to draw attention to the fact that there was no medical evidence adduced and no witnesses brought from the Fire Authority to speak to where the bodies of Mr and Mrs Grant were found. Pursuer's counsel explained that no medical evidence was led because such evidence could not determine which of the two died first. But in view of the considerations on which the pursuer relied and to which I shall refer shortly the views of a medical expert might have been of some value on the inferences from the medical point of view to be drawn from these considerations. No explanation was forthcoming about the absence of evidence from firemen who presumably discovered the bodies in due course, and an offer by the Court to allow the pursuer to lead additional evidence on these matters was not accepted. If the absence of such evidence is crucial to the answer to the question in the case the responsibility therefor lies with the pursuer and her advisers.

[His Lordship then turned to consider the evidence and concluded.]—I am of the opinion that, despite the lacunaein the evidence to which I have referred, the balance of probabilities seems to tilt quite definitely in favour of the proposition that Mr Grant died before his wife, and I so hold. I would therefore move your Lordships to recall the interlocutor of the Lord Ordinary and grant decree as concluded for as amended.

LORD KISSEN (read by Lord Thomson).—[After dealing with the earlier procedure his Lordship continued]—

The two submissions made by pursuer's counsel were that the standard of proof on the pursuer was on a balance of probability and that, applying that standard, she had established the crucial fact of survival. It was not suggested that, if the standard of proof on the pursuer was higher than that of proof on a balance of probability, she could succeed.

I consider, firstly, the question of the standard of proof on the pursuer in a case such as this and the effect, if any, of the said section 31 on that standard. The relevant part of section 31 is in these terms, viz.:—

"(1) Where two persons have died in circumstances indicating that they died simultaneously or rendering it uncertain which if either of them survived the other, then, for all purposes affecting title or succession to property or claims to legal rights or the prior rights of a surviving spouse, (a) where the persons were husband and wife it shall be presumed that neither survived the other; and (b) in any other case, it shall be presumed that the younger person survived the older unless the next following subsection applies …"

Looking at that section alone and ignoring, for the present, the judicial observations in other cases where similar provisions in the statutes of other countries were considered, I think that the standard of proof on the pursuer in a case such as this was that of a balance of probability.

This is a civil case and neither criminal nor quasi-criminal. The rule in civil cases is proof on a balance or preponderance of probability (Hendry v. Clan Line Steamers Ltd. 1949 S.C. 320). There can be no doubt that, prior to the Succession (Scotland) Act 1964 (cap. 41), that would have been the standard of proof required in a case where survivance was in issue. There is no suggestion in any of the earlier cases, so far as I have been able to discover, that there was some special standard of proof in cases where survivance had to be proved. (See M'Laren's "Wills and Succession," 3rd Ed. I paras. 117-120 and Dickson on "Evidence" (1887 Edition) para. 130.) That appears to have been the position in England prior to the passing of the Act of 1924 to which I later refer. (See Wing v. Angrave 8 H.L.C. 183 at p. 199 where Lord Campbell L.C. refers to the test of a "clear preponderance of evidence to support the inference …")

Section 31 is not, in my opinion, concerned with standard of proof. It introduces certain presumptions to the law of Scotland. The fact that the word "uncertain" is used, in referring to these presumptions, cannot mean that some new standard of proof is thereby introduced, when that word is considered in its context. That section contemplates two results which might follow from an inquiry into the facts. The first might be evidence, to the satisfaction of the tribunal of inquiry, of simultaneous deaths. The second might be that the tribunal inquiring into the facts cannot reach a definite conclusion on the facts and the inferences to be drawn from them. In the latter event, there being no preponderance of probability one way or the other, there would be uncertainty. This is a familiar concept in civil law where questions of the burden of proof arise. (See, for example, the observations of Lord Justice-Clerk Thomson in Hendry1949 S.C. 320 at p. 322 and Lord Jamieson at p. 328 in referring to other dicta.) In other words, as I have said, my view is that the standard of proof in a case such as this means proof on a balance of probability, which was the standard prior to the Act of 1964. The Act has not altered it.

I now turn to the judicial observations to which I earlier referred. In the case of Hickman v. Peacey [1945] A.C. 304 the House of Lords considered section 184 of the Law of Property Act 1925, applicable to England, which is in similar terms to section 31. Section 184 is in these terms, viz.:—

"In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others such death shall (subject to any order of the court) for all purposes affecting the title to property, be presumed to have occurred in order of seniority and equivalently the younger shall be deemed to have survived the older."

The decision in that case was by a majority of three to two. The question of whether the use of the word "uncertain" meant that a standard of proof which was higher than balance of probability had to be applied did not arise for decision but there were some observations on that aspect, with some sharp divisions of opinion among the four of their Lordships who did express views on this. Without going in detail into those observations, I must say that nothing in the speeches of those who thought or appeared to think that the standard of proof was more than proof on a balance of probability altered the view which I formed on a consideration of section 31 alone. I do not think that the Lord Ordinary is correct when he says that none of their Lordships was of opinion that "proof of the fact of survivance, sufficient to resolve uncertainty could be established on the balance of probabilities, as that standard is normally applied in civil actions." Viscount Simon L.C. and Lord Wright were, I think, of that opinion. The former at p. 318 refers to uncertainty not removed by evidence leading to a defined and warranted conclusion. The Lord Ordinary finds this difficult to follow but, in its context and under reference to his earlier observations on that page that the standard of proof is no different from that in other cases, he is, I think, saying that insufficient evidence to tilt the balance of probability cannot lead to a defined and warranted conclusion. Lord Wright at p. 326 refers to ascertainment being by the same way and the same rules in regard to proof as any other disputed issue of fact.

The observations of their Lordships in Hickman were considered by Jenkins J., as he then was, in Re Bate 1947 2 All E.R. 418. He applied the dictum of Viscount Simon to which I earlier referred. It seems to me that, in giving his reasons for his decisions at p. 421, he was, in effect, saying that he was "uncertain" because the evidence was not sufficiently tilted one way or the other to enable him to reach a definite and warranted conclusion. That case is also reported in 1947 Law Journal Reports at p. 1409. In this latter report, he does refer to the standard being a "balance of probability" in a passage which the Lord Ordinary quotes but which is not quite in line with the actual passage in the report. The Lord Ordinary takes the view that the difference in the reports is because the former was "official" and the learned judge had revised it to make it clear that he had not tested the evidence by the standard of balance of probability. I do not know if the All England Report was revised but, in any event, it appears to me that this case cannot affect the view which I take of the standard of proof and, if anything, strengthens it.

The researches and industry of the reclaimer's counsel produced certain other Dominion cases from Canada and Australia to which the Lord Ordinary had not been referred and which dealt with somewhat similar provisions in other countries. In all of these cases the standard of proof was held to be on a balance or preponderance of probability. I need only refer, in any detail, to the case of Adare v. Fairplay 1955 2 D.L.R. (67). This was a decision of the Ontario Court of Appeal affirming the decision of a single judge who decided the issue of survival on a "preponderance of evidence" (Reported in Ontario Weekly Notes 1955 p. 951). The Ontario Court of Appeal considered, in detail, the standard of proof required to justify a finding that one deceased person survived the other. The speeches in the case of Hickman were considered and discussed. I cannot agree with the view stated in that case that "the totality of judicial opinion expressed by their Lordships (in Hickman) supports the view that the instant case being a civil case, the standard of proof in civil cases and not that in criminal cases applies." I do agree, however, with the conclusion.

On this first submission of the reclaimers, I think that the Lord Ordinary was incorrect on the standard of proof required of the pursuer and in stating that there was some kind of intermediate standard of proof between that appropriate to civil and criminal cases and only applicable in cases such as this.

I agree that the reclaiming motion should be allowed and decree of declarator granted.

LORD LEECHMAN :—Upon the matter of what was the standard of proof required of the pursuer here, I agree with the approach of your Lordship in the Chair. It seems to me that what section 31 of the Succession (Scotland) Act 1964 (cap. 41) did was to introduce into our law a presumption, in relation to the deaths of two persons, which was to have effect in one or other of two factual situations (being those expressed in the section). No doubt either situation could represent the finding of some form of judicial process, but that is not necessarily so. In any event where, as here, the section is dealing with such situations without reference to any judicial process out of which these may have arisen, I cannot see how, even by implication, it can be said to be laying down any standard of proof, much less any special standard of proof as being applicable to such a judicial process. The Lord Ordinary has, of course, founded on the use of the word "uncertain," but it seems to me that that word is adequately explained by its aptness to describe the factual situation arrived at where, assuming a judicial process, and assuming that the normal standard of proof has been applied thereto, the evidence is yet evenly balanced upon which, if either, of two persons has survived the other.

In this case the pursuer has, as she was entitled to do, brought her action without reference to the terms of section 31. The Lord Ordinary has erred in placing upon her a standard of proof higher than that ordinarily applicable in civil cases. The matter of survivance thus arises afresh for our consideration on the evidence. I agree in. full with your Lordship's assessment of that evidence, that upon a balance of probabilities the late Mrs Grant survived her husband, that the presumption of the Act thus does not apply and that the pursuer is entitled to decree in terms of the conclusion as that has now been amended.