Scottish Court of Session Decisions

In this action the pursuer is the great-nephew of the late Mrs Margaret Ewing Hodgkinson who died on 9 February 1998 ("the deceased"). The deceased left a Last Will and Testament dated 15 February 1994, in which she appointed the pursuer as executor nominate and directed inter alia that the residue of her estate be made over to the pursuer, whom failing, to the first defender. In this action the pursuer seeks inter alia production and reduction of a subsequent Codicil which was signed by the deceased's solicitor on her behalf and with her authority on 14 November 1997. In that Codicil she revoked the appointment of the pursuer as executor and appointed in his stead the first defender. She directed inter alia that the residue of her estate be paid to the first defender as if the pursuer had pre-deceased her.

The pursuer avers in Condescendence IV that prior to her death the deceased had been advised by the first defender (falsely) that the pursuer had made derogatory comments about her. As a result of these comments the deceased prepared the said Codicil. The case for reduction is presented on two bases - facility and circumvention and undue influence. In particular in Condescendence VI it is averred "In 1997 the deceased, being 91 years of age, was elderly. She was to some considerable extent naive and gullible and relied heavily on others. She was made particularly vulnerable by the injury sustained in her fall and her consequent hospitalisation. In 1994 she had been sufficiently fit to sign her said Will. In contrast in November 1997 she was not fit enough to either sign it or have it read to her. She was at that time, particularly due to her age and personality and her situation of being hospitalised, vulnerable to being influenced by comments of others and open to persuasion. She changed her Will and in particular the destination of the residue of her estate because of the false statements made by the first defender about what the pursuer was supposed to have said about her. Had she not been told of these alleged comments, it is most probable that she would not have instructed such Codicil and would therefore have left her Will of February 1994 standing. Accordingly, the first defender, taking advantage of the deceased's facile condition, circumvented her Will by telling her said falsehoods. He caused her to change her Will as aforesaid by means of said Codicil to the lesion of the pursuer. Furthermore the first defender had developed a relationship with the deceased which enabled him to exert influence over her. He used his position to exert undue influence on the deceased, particularly by giving her erroneous information about statements made by the pursuer, to change her Will by said Codicil to his advantage. The pursuer accordingly seeks reduction of the said Codicil".

In Condescendence IV the pursuer makes certain averments about the relationship between the deceased and the first defender - in particular:- "Explained and averred that prior to the deceased's funeral the pursuer had never spoken to the first defender. It is believed that the first defender is a taxi driver. He had made himself available to drive her when she needed a driver. For a few years he acted almost as a chauffeur to the deceased. She often went out on her own to concerts. He would take her there and collect her later even as far afield as Edinburgh. He took her to appointments as well. He remarried in about June 1997. He invited the deceased to the wedding. The deceased came to consider the first defender as a very close friend. She had very few friends. She was clingy and dependent on those she did have and was easily influenced by them. She came to place great trust in the first defender. She chose to grant him a Power of Attorney". It is not averred that the Power of Attorney was granted prior to the alleged false remarks having been made or prior to the date when the deceased instructed changes to her Will, and averments by the first defender that the Power of Attorney was granted on 7 November 1997 are met by a general denial.

The matter came before me on Procedure Roll when counsel for the first defender advanced certain arguments in support of his first plea-in-law, being a general plea to the relevance and specification of the action.

In the first place it was argued that the case which the pursuer sought to make was plainly one of deliberate falsehood by the first defender leading to the deceased changing her Will. The case, as presented on both bases, depended upon proof of deliberate actings calculated to produce a specific result. Emphasis was placed on the averments to the effect that "He caused her to change her Will" and "He used his position to exert undue influence on the deceased ...". In these circumstances, to be relevant, the pursuer would require to aver that the first defender was aware of the terms of the Will, in particular that the pursuer was the residuary beneficiary thereunder and further that he, the first defender, would be likely to take that provision in her stead if her original instructions changed (although it was, as I understood it, ultimately accepted that the latter would not be necessary).

Secondly, so far as the case based on alleged undue influence was concerned, the pursuer had failed to aver a relationship of a fiduciary or quasi-fiduciary character prior to the time when the deceased instructed the change to her Will. It would be different if the pursuer was offering to prove that Power of Attorney had been granted prior to that date, but the pursuer appeared to aver only a relationship of friendship. There were certain relationships to which the concept of undue influence could aptly be applied - trustee and beneficiary, law agent and client, parent and child, guardian and ward, cleric and parishioner, and doctor and patient. While the class of appropriate relationships was not fixed, what mattered was a relationship which created a dominant and ascendant influence in one party. In addition there must have been some formal structure to the relationship, in which it could be said that one party was to give guidance and advice and the other to receive it. It was necessary that the defender could be said to have held something in the nature of an official position or to have acted as a specialist adviser - a relationship in which it could be said that it was natural and probable that the deceased would follow the advice and guidance of the defender. Reference was made to Gray v Binny 1879 7R 332, Honeyman's Executors v Sharp 1978 S.C.223, Weir v Grace 1899 2F (H.L.) 30 and McKechnie v McKechnie's Trustees 1908 S.C.93.

Lastly, it was submitted that in this case, where the pursuer was seeking to found upon an apparent deliberate act, it was necessary for the pursuer to prove that the first defender was aware that he held a position of trust capable of being abused. This had not been averred.

On behalf of the pursuer it was argued, in the first place, that too much by way of averment was being sought. It was accepted that, reasonably read, the pursuer was seeking to establish deliberate dishonest actings leading to the changing of the deceased's Will. In this respect the pursuer - at least as respects the case based on facility and circumvention - was offering to prove more than was strictly necessary. In a case such as this all that was necessary to aver was that the deceased was in a state of facility and that another had led her to change a deed to his or his relatives' advantage, there being no need to aver or prove any specific act of circumvention. Reference was made to Clunie v Stirling 1854 17D 15 and Mackay v Campbell 1967 S.C.(H.L.) 53. In any event it could readily be inferred from the pursuer's averments that he was seeking to prove that the first defender at least knew enough to indicate that as a result of his falsehoods the pursuer would suffer and he would gain - which was all that was necessary. In any event shortly after the hearing before me on Procedure Roll, the pursuer sought and was granted leave to amend - adding averments to the effect that the first defender knew that he was likely to "be the main beneficiary of the deceased's Will in the event of her deciding that she no longer wished to favour the pursuer", an averment apparently depending on inference from a further new averment to the effect that he was aware that if anything happened to the pursuer he would be the main beneficiary of her Will.

In the second place, all a pursuer needed to aver in a case of undue influence was a relationship where trust and confidence was placed by one in another and its abuse by the person trusted. The pursuer had at least averred enough to entitle him to a proof before answer. It could not be said at this stage that he was bound to fail. Reference in particular was made to Gray v Binny. Although it was accepted that the approach of the court in England was different (in particular there being in that jurisdiction circumstances in which a presumption of undue influence was said to arise), it was instructive at least to notice that the principles applied appeared to be the same. Reference was in particular made to in re Craig deceased 1971 1 Ch.95 and to the opinion of Ungoed-Thomas J at page 104 where he said:

There was nothing in the other authorities referred to by the first defender which detracted from the general position adopted in Gray v Binny.

As to the first defender's third argument it was submitted that it was reasonably implicit in the averments, and capable of being inferred on the evidence, that the first defender was aware that he held a position in which he was able to exercise undue influence.

I have come to the view that the pursuer has averred enough in this case to entitle him at least to a proof before answer of all his averments.

In the first place, even without the amendment which was made, by offering to prove deliberate dishonesty leading to the change of the deceased's Will, the pursuer has averred more - at least in the case of facility and circumvention - than would ordinarily be necessary (Clunie v Stirling and Mackay v Campbell). Further it was, it seems to me, reasonably implicit from the pursuer's averments that he was offering to prove that the first defender deliberately made certain dishonest statements to the deceased with an intention to disadvantage the pursuer and to benefit himself in relation to her testamentary intentions, which I consider would be enough even if he did not know of the precise terms of her Will. In any event it is clear that the pursuer is now, following amendment, offering to prove the knowledge desiderated by the first defender, a knowledge which - despite the first defender's arguments - was at least capable of being inferred from the other averments now made.

Secondly, it seems to me to be clear from the case of Gray v Binny that what is necessary in a case of undue influence is the existence of a relationship in which trust and confidence was reposed by one in another, in circumstances in which that other exercised a dominant or ascendant influence. In that case, which concerned the reduction of a deed obtained by a mother from her son, Lord Shand said, at page 347:

and further, on the same page -

Lord President Inglis, at page 342, said:

Both he and Lord Deas approved of the reasoning of the Lord Ordinary (Lord Young). In his judgment he said (at page 338):

This case was not disproved of or overturned by any of the other cases referred to. The case of Weir v Grace was concerned not so much with the nature of the relationship but with what was necessary for the act of undue influence. In Honeyman's Executors v Sharp the Lord Ordinary found it unnecessary to decide whether the law imposed any stricter requirements. In these circumstances I consider that the pursuer's averments - although somewhat bare - are at least enough to entitle him to a proof before answer. There are averments suggesting a degree of dependence, and trust reposed, all in circumstances where Power of Attorney was apparently shortly to be granted. I agree with the Lord Ordinary in Honeyman's Executors v Sharp that in this area it is difficult to ascertain the true position on the basis of written pleadings without inquiry into the facts. Although no doubt any pursuer such this who seeks to found upon a relationship outwith the normally accepted categories will expect to find the evidence analysed with particular care; it cannot at this stage be said that the pursuer is bound to fail. As to the case of McKechnie v McKechnie's Trustees it is difficult to reconcile Lord Justice Clerk Macdonald's opinion - which appeared to proceed on a view which excluded natural relations - with the statements of principle in Gray and the critical factor in Lord Stormonth Darling's judgement was that there was no evidence that the defender - who was the paramour of the deceased and mother of his child - took any part in the preparation or execution of his Will. If anything, however, the judgments do appear to suggest the need for some fiduciary duty to have been incumbent on the defender (consistent apparently with certain observations of Lord President Clyde in Ross v Gosselin's Executors 1926 S.C.325, referred to by the Lord Ordinary in Honeyman's Executors at page 228). Even if that was thought to go further than the general statements in Gray, it cannot be said that the relationship which the pursuer's averments might establish could not fall within the terms of this requirement.

The first defender's third argument falls to be rejected for the reasons advanced on behalf of the pursuer.

In all the circumstances I shall allow a proof before answer.