Scottish Court of Session Decisions

The cause called before an Extra Division comprising Lord Coulsfield, Lord Marnoch and Lord Allanbridge for a hearing in the summar roll.

At advising, on 11 February 1997, the opinion of the court was delivered by Lord Marnoch.

OPINION OF THE COURT—In this action the pursuer seeks reduction of the will of the late Mrs Rachel Macintosh Macrae Williamson dated 11 April 1988 and of the confirmation of the executors appointed or purportedly appointed thereunder.

The basis of the action is quite simply that one of the witnesses, David Carment Reid Wilson, Solicitor, failed to subscribe his name or signature as a witness and instead wrote the name, ‘D C R Williamson’.

In their defences the defenders offer to prove that Mr Wilson ‘inadvertently wrote "D C R Williamson, witness" instead of his usual signature’. That line of defence was, however, repelled as irrelevant by the Lord Ordinary who granted decree de plano in favour of the pursuer.

On behalf of the defenders and reclaimers counsel argued before us, as had been argued before the Lord Ordinary, first, that the difference between ‘Williamson’ and ‘Wilson’ could simply be disregarded as being in the nature of a ‘minor discrepancy’ and second, that in any event it amounted to no more than an ‘informality of execution’ which could be cured through the operation of sec 39 of the Conveyancing (Scotland) Act 1874.

In support of the first of these propositions counsel referred, by way of analogy, to the various cases summarised in Menzies, Lectures on Conveyancing, 3rd edn at pp 121–2 and in the speech of Lord Shaw of Dunfermline in Walker v. Whitwell at p 86. Some of these were noticed by the Lord Ordinary but it suffices to say that none dealt with the matter of an incorrect signature as opposed to an incorrect name or designation within the body of the deed or testing clause. According to counsel the only question which arose was whether the witness had sufficiently identified himself by his subscription and in that context the argument came to be that a subscription could be constituted by the writing of any name which was intended to be a signature provided that the name was complete.

In our opinion, however, it is clear from the cases referred to by Menzies and indeed from the text itself (at the bottom of p 122) that, as regards ‘discrepancies’, identification is not the only consideration and nor can we accept the proposition that the validity or otherwise of a witness's subscription can be made to depend on subjective intention. On the contrary, the whole purpose of a witness adhibiting a subscription, as it seems to us, is to record, without further reference to him, his witnessing of the signature of the grantor. In so doing he doubtless identifies himself by appending his own ‘signature’, which term is defined by the Shorter Oxford Dictionary as meaning, ‘To indicate symbolically; to mark out, designate’.

In McLaren v. Menzies at p 1167 Lord Gifford points out that there is no statutory definition of the word ‘subscription’, either in the Act of 1874 or in any other statute. He goes on to say that, ‘The word means etymologically and originally a signature, or other writing equivalent to a signature, at the foot or end of a writing, as opposed to superscription, where the signature or sign-manual was put at the beginning or top of a writing, and I do not think the word subscription has in strictness and in Scotland any other meaning than this original one.’ Counsel founded on the reference to ‘other writing equivalent to a signature’ but in our opinion that is simply a reference to abbreviated or family names or, it may be, initials by which a person is proved customarily to have signified his authority. The law reports are full of examples of such cases and counsel for the pursuer and respondent cited a goodly number to us. We do not find it necessary to enumerate these because, as importantly, there is a large number of cases in which validity was denied regardless, it would seem, of the actual intention of the grantor or witness concerned.

In Stirling Stuart v. Stirling Crawfurd's Trustees and Executrix an impressed signature was held invalid despite the fact that the author suffered from scrivener's palsy and found great difficulty in writing. In the same case, by way of contrast, the author's illegible but manuscript signature was held to be good. According to Lord President Inglis, at p 626, what was important was that it was the ‘ordinary way in which the writer signs his name’. The Lord President goes on to say, ‘We know that it was made by his own hand originally, and we see that it resembles his ordinary signature, and that being so, I think it is quite impossible to sustain the argument that the deed was not subscribed by Mr Crawfurd’. It is to be noted from that last passage that the Lord President did not think it sufficient to know simply that the writing had been adhibited by Mr Crawfurd. In addition it had to resemble what was proved to be his ‘ordinary signature’.

In Gardner v. Lucas both the First Division and the House of Lords denied validity to a lease which had been signed at the end by the grantors but only initialled on the intermediate pages. Having been executed prior to the commencement of the Conveyancing Act 1874 it was held that sec 39 of that Act had no application and the reason why validity was denied was that the use of initials was plainly not the grantors' usual mode of signifying authenticity. In the Inner House at p 645 Lord President Inglis puts the matter thus: ‘It may be that a person who does not sign his name in full, and perhaps cannot sign his name in full, but is in use to subscribe deeds by initials, may be held sufficiently to sign a deed if he appends his initials according to his custom; but with reference to persons who do subscribe their names in full, or at least in full as regards the surname, I do not think it is possible to say that they sign a deed when they merely put their initials upon the paper.’ The reasoning in the House of Lords was to the same effect, the Lord Chancellor (Lord Cairns) saying, at p 107: ‘If, in the case of any particular person, the proper signature at the end be a signature by way of mark or by way of initial, then that may also serve as the proper signature upon each separate page; but, if the proper signature at the end be a signature at full length (and the person signing the writing in question here shew that that was their opinion of their signature, and their habit of signature), then the same signature must, as it seems to me, be found on each individual page.’ In short, there was not a suggestion in either the Inner House or the House of Lords that the intention of the grantors had anything to do with the matter, the only question being whether the grantors had or had not, where necessary, adhibited their ordinary signatures. In this connection we should perhaps mention for the sake of completeness that there is some old authority for the view that, unlike a grantor, a witness can never be permitted to subscribe by initials;—Meek v. Dunlop . There is also, we think, some doubt whether for purposes of the authentication statutes a document can ever be subscribed by a mark;—Graham v. Macleod, Crosbie v. Wilson, per the Lord Ordinary (Lord Ormidale) at p 874.

Another class of case is that in which an incomplete signature has been adhibited, examples being Moncrieff v. Monypenny and Donald v. McGregor . In both these cases it appears that the grantor was too weak to complete his signature, at least unaided, but there was no suggestion that evidence as to actual intention might be relevant.

In the result, our conclusion from a perusal of all the authorities to which we were referred is that to constitute a valid subscription the signature or ‘other writing equivalent to a signature’ must be recognisable objectively as that customarily adhibited by the signatory. In short, there is, in our opinion, simply no room for the concept of a ‘mistaken signature’ as urged on us by counsel for the defenders. In this connection considerations of equity must, we think, yield to the substantive requirements of the law as embodied in the Subscription of Deeds Acts 1540, 1579 and 1681, commonly referred to as the Authentication Statutes. In that regard we cannot improve on Lord Kinnear's summary of the position in Macdonald v. Cuthbertson at p 108: ‘If this were a question of intention merely, there would be a great deal to be said in support of the will. But we are not looking at this instrument as a court of construction for the purpose of ascertaining what the writer intended to effect. The preliminary question, with which alone we are concerned, is whether it satisfies the conditions prescribed by law for the authentication of written instruments. These conditions are prescribed by statutes, and if the statutes are applicable, the only question we have to consider is whether the statutory conditions have been fulfilled or not.’

When one looks to the provisions of sec 39 of the Conveyancing (Scotland) Act 1874 it is, we think, entirely clear that before the section can take effect at all there must be a valid subscription of the grantor accompanied by valid subscriptions of two witnesses. This, indeed, was accepted by counsel for the defenders and was emphasised in all the authorities cited by him including Walker v. Whitwell, McLaren v. Menzies and Wood, Lectures on Conveyancing at p 72. Counsel for the defenders' submission was that ‘D C R Williamson’ could be regarded as such a subscription and that the ‘informality of execution’ was simply a failure to record the ‘mistake’ in the testing clause.

In our opinion, however, for the reasons given above that is not an acceptable approach. The testing clause cannot be used to control the validity of the subscription or, to put the matter otherwise, the validity of a subscription cannot depend on the presence or absence of a testing clause. On the contrary, the question of whether a witness has properly subscribed must, as we have said, be tested objectively and on that approach the only conclusion we can reach is that Mr Wilson failed to adhibit his normal or customary signature, or any customary equivalent to his signature, on the occasion in question. In our opinion, therefore, he failed to attest the will or purported will of the late Mrs Williamson.

For these reasons, which are not substantially different from those relied on by the Lord Ordinary, we refuse the reclaiming motion.