Scottish Court of Session Decisions

Mrs Florence Mary Lauder died on 15 August 1995. On 15 May 1978, she executed a will which had been prepared on her behalf by her then solicitors, Messrs Bird Semple & Crawford Heron, Glasgow. At that time she was resident in Glasgow. On 6 February 1989, Mrs Lauder wrote to her solicitors asking for the will and another document to be sent to her because she was moving to a new address in Newbury, Berkshire. The documents were sent, and she acknowledged receipt of them by signing and returning on 10 February 1989 a letter prepared by her solicitors. When she died, the will could not be found in her repositories, and advertisement and enquiries in the Newbury area failed to bring it, or any later will, to light. The pursuer, in the events which have happened, is one of the residuary legatees named in the will.

In this action the pursuer contends that the estate of the late Mrs Lauder should be administered in terms of the will, the tenor of which she seeks to establish by reference to a copy retained by Messrs Bird Semple & Crawford Heron. The defenders, who are the executors of the late Mrs Hilda Rose Crouch, have an interest in the estate on intestacy. They contend that it must be presumed from the absence of the document from the deceased's repositories that she destroyed it during her lifetime, animo revocandi. In that event, the estate should be administered and distributed according to the laws of intestacy.

The first issue between the parties at debate was whether there is in the law of Scotland a presumption, of fact or of law, that, where it is known that a will has been in the possession of a deceased person prior to death, but is not forthcoming at the date of death, the will was destroyed by the deceased animo revocandi. For the defenders, Mr Hayhow argued that such a presumption was supported by Bonthrone v Ireland 1883 10 R. 779. The presumption placed a high hurdle in the way of putative beneficiaries under the missing document: Winchester v Smith 1863 1 M. 685, and Clyde v Clyde 1958 SC 343. For the pursuer, Mr Tyre argued that the preponderance of authority did not support the presumption contended for. On the contrary the most persuasive authority was to a different effect. He referred to Nasmyth vHare 1821 1 Shaw's Appeals 114, Norman v Dick 1838, 1 D. 59, Winchester v Smith, Crosbie v Wilson 1865, 3 M. 870, Bonthrone v Ireland, Dickson on Evidence, McLaren on Wills & Succession, Young v Anderson 1904, 7 F. 128, Clyde v Clyde, Walkers on Evidence, Bruce's Judicial Factor v Lord Advocate 1969 SC 296, and The Stair Encyclopaedia Vol 25 para 744.

The basis on which it was contended that there is a presumption of law to the effect for which the defenders contend is Lord Young's opinion in Bonthrone v Ireland. The issue in the case resolved into one of fact, namely whether Mrs Ireland, the deceased's daughter, who had admittedly destroyed the will in question, had done so with or without the instructions of the deceased: page 781. Mrs Ireland's evidence was believed. It appears from the report, at page 785, that the defenders advanced the proposition that the presumption in law was that deed had been legally destroyed without reference to authority, but that Lord Young in the course of argument referred parties to Sir James Hannen's opinion in Sugden v Lord St. Leonards, 1876 L.R., 1 Prob & Div 154. In his opinion at page 790, Lord Young says:

No authority was cited for that proposition. But it seems clear that the source of the view was Sir J. Hannen's opinion in Sugden at page 195. See also: James L.J. at page 214, in the course of argument, Cockburn C.J. at page 217, and Jessel, M.R. at page 231. The presumption was held to be presumptio juris, not de jure. Lord Young was followed by Lord Guthrie in Clyde v Clyde, and by Lord Robertson in Bruce's Judicial Factor. The general rule was conceded in the Inner House in the latter case: page 305. The majority of the textbook commentaries to which I was referred reflect this view of the law. In my opinion it must be accepted for present purposes, at least at first instance, that there is a presumptio juris to the effect founded on by the defenders.

However, it is appropriate to set out Mr Tyre's argument more fully, in case the issue is pursued. In none of the authorities supporting the presumption was Crosbie v Wilson cited. Two years before that case, in Winchester v Smith, which was essentially a decision on fact, there was wide variation of opinion on the topic. The majority of the consulted judges, at page 689, subscribed to the view, which was not contentious at the debate, that the destruction or cancellation of a revocable document was an effectual mode of exercise of the power of revocation. To sustain the deed against that background required clear evidence of a casus amissionis sufficient in the circumstances to obviate the presumption that the act implied revocation. Lord Neaves and Lord Justice Clerk Inglis concurred with the majority. Lord Cowan, at page 695, agreed in expressing the general rule, but distinguished the instant case. Crosbie v Wilson related to a different presumption, and the difference may be material. In the earliest of the cases cited, Nasmyth v Hare, the critical testamentary writing had been executed and sealed in India. Sealing was treated as an idiosyncratic solemnity prescribed by the deceased, and on that basis the removal of the seal while the document remained under the control of the deceased was held equivalent to its destruction. Lord Chancellor Eldon, at page 73 said:

There is an obvious, if superficial, similarity where a deed, ex hypothesi in the control of the granter cannot be found. But as Mr Tyre put it, there is then an undistributed middle. The means by which a deed may cease to be available differ in range from the means by which a seal comes to be removed, or the document comes to be defaced. That is the situation recognised by Lord Justice Clerk Inglis in Crosbie v Wilson. The testament in question had been executed in duplicate. The duplicate retained by the testatrix was found mutilated at her death. On the basis of English authorities, the Lord Ordinary held that the destruction or cancellation of one duplicate inferred the alteration or revocation of the other: page 875. Against that background, the Lord Justice Clerk said at page 876-7:

He went on to comment on Nasmyth v Hare, and to the fact that the deed was kept in a lock-fast place, and said:

And he proceeded to examine the facts. Lord Cowan thought that the issue would have been difficult if there had been a basis in fact for holding that the deceased had herself mutilated the deed. Lord Benholme was of the same view. Lord Neaves was of the view that mutilation by the testatrix would be an example of the exercise by the testatrix of the general power of revocation by destruction. But his approach was that there was no presumption of law: the matter was dictated by reason and probability. That implied that the issue was wholly a matter of fact. The Lord Justice Clerk did not have the unqualified support of the other members of the Division. But even so, one might have expected the case to be considered in any context in which the importation of an avowedly English rule was in contemplation. There is at least a suspicion that one has in the differences of opinion in Crosbie v Wilson an example of a tension between those interested in assimilating the laws of Scotland and England, and those intent on asserting an independent line of thought. Whether or not that suspicion is well founded, it is clear, in my opinion, that there was at the time a real issue as to the proper approach for Scots law to adopt in such cases. It is at least arguable, as Mr Tyre submitted, that an obiter observation based on English authority is a shaky foundation for a rule of Scots law, even if the rule in England were one of common law.

The next case mentioned was Young v Anderson. The facts as found tend to indicate that the will was in existence at the death of the testator and that it was lost thereafter. The case is therefore of little direct relevance. Crosbie v Wilson was not referred to. The defender cited a number of cases to which I was not referred, but also sought to rely on the presumption, and on Lord Young's observations in particular: page 131. Lord Adam refers to the argument at page 133, but does not discuss the presumption. Lord McLaren, however, does mention the issue. At page 135 he says:

Since Bonthrone v Young was before the court, this cannot have been a casual comment. Moreover, in the third edition of Wills & Succession, of 1894, (in which the writer stated that, generally, he had abstained from offering his opinion on controversial questions on which he might have to pass judgment) Lord McLaren states the general rule in these terms at paragraph 746:

Under reference to Winchester v Smith he refers to the onus on the party asserting the subsistence of the will, in that case, to establish it. In paragraph 748 he dismisses English authority in a compendious manner as irrelevant, since it related to statutory provisions which had no application in Scotland. The statutory context for the English rule was not noted in Bonthrone, and may be material in any review of this issue. That apart, the commentary treats the question as one of fact.

Against McLaren, Dickson on Evidence, third edition, 1887, under reference to Bonthrone and the English textbook Taylor, states the presumption in unqualified terms in paragraph 114. Crosbie v Wilson is mentioned in three later paragraphs, and in particular at paragraph 897. But no note is taken of the Lord Justice Clerk's observations in paragraph 114. Walkers on Evidence paragraph 66 follow Dickson.

Against this background, Mr Tyre argued that Lord Guthrie had not disposed of Lord McLaren's views effectively in Clyde v Clyde. He pointed to paragraph 744 of volume 25 of the Stair Encyclopaedia where the citations were fairly comprehensive, but the present position was less than fully discussed.

Mr Tyre's argument was persuasive. But it appears to me that a review of this area of the law is a matter for the Inner House. The presumption is now well established, and it would be inappropriate for me to proceed on any basis other than that it applied in the present case.

That leads one to consider whether in this case there are sufficient averments of casus amissionis for the case to proceed to proof. In my view there are. Some of the cases referred to provide illustrations of what has supplied proof of the required casus amissionis. In Sugden the facts sufficient to overcome the presumption in English law were that Lord St Leonards was not the sort of man to destroy an extant will without replacing it (pages 218-9), and that the will was in a box generally available in the household. The Chief Justice concluded:

Notwithstanding Lord Young's comments in Bonthrone, the eventual decision came close to attributing the disappearance of the testament to a "tortious act" without much direct evidence. In Young v Anderson, the proof that the will was extant at the death of the testator, and therefore that it must have been destroyed or lost after his death, was less than direct. In Clyde v Clyde it was held that there were insufficient averments of the required casus amissionis, but that was in a situation in which all that the putative beneficiary could rely on was the continuing goodwill of the deceased to the date of his death, and there is nothing surprising about the result Lord Guthrie arrived at.

There are averments that the deceased's mental health was deteriorating at about the time of her move to England, and thereafter. It is not suggested that she ceased to have testamentary capacity. I was referred to Stair's Institutions III 8 37, Erskine's Institute 1 VII 33 and Sivewright's Trustees v Sivewright 1920 S.C.(H.L.) 63 in support of the proposition that the test of capacity to revoke was the same as that for making a will. Had it been suggested that the testatrix destroyed the will, but that she did so when her capacity had so diminished that she could not be held to have revoked the will by that act, the general principle would have been clear. But the pursuer does not rely on that view of the facts, and indeed makes no positive averment about her testamentary capacity. The case is rather that the absence of a deed from the repositories of a confused person may not, in all of the circumstances of this case, sustain the inference that that person must have destroyed the deed at all, or animo revocandi. There are further averments about her inability properly to manage her affairs, and of a confused treatment of her belongings at about the time of her removal. I consider that it cannot be said that the pursuer must fail after proof, and that there are averments sufficient to proceed to that stage. In the circumstances it would be inappropriate to formulate, or to express, any view on the outcome of that proof at this stage, or to make further observations on the application of the authorities to the facts that may eventually be found. I shall allow parties a proof before answer of their respective averments accordingly.