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Cite as: 1999 SC 479, [1999] ScotCS 72

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03/16/1996

OPINION OF LORD EASSIE

in the cause

(FIRST) ALASDAIR COCKBURN KERR BOYLE and (SECOND) ANGUS LORIMER KERR BOYLE

Pursuers;

against

(FIRST) RONALD E. WILSON, (SECOND) ANN KERR BOYLE and (THIRD) NEULA KERR BOYLE

Defenders:

________________

Pursuers: Mackie, Gray Muirhead W.S. (for Wilkie & Dundas, Solicitors, Kirriemuir)

First Defender: Party

12 March 1999

Introductory

This action seeks the reduction of a pretended Will by the late Mrs Nellie Cockburn or Kerr Boyle ["Mrs Kerr Boyle"] who was generally known as Mrs Neula or Neulagh Kerr Boyle. The pretended Will, number 5/7 of process, was dated 13 July 1994 and was registered in the Books of Council and Session on 13 November 1995 following Mrs Kerr Boyle's death on 28 October 1995. Mrs Kerr Boyle was 86 years old when she died. She was a widow, her husband having died in 1968. She had two children, namely her sons Alasdair and Angus who survived her and who are the pursuers in this action. The first defender is Ronald E. Wilson who is the sole executor nominated under the pretended Will of 13 July 1994 ["the July Will"] in terms of which he was also the principal beneficiary. Other, but minor, beneficiaries under the July Will included the pursuers and the second and third defenders who are the wife and daughter respectively of the first pursuer Alasdair Kerr Boyle. The second and third defenders have not entered the process. The action is defended by the first defender, to whom I shall refer for simplicity as "the defender". Although initially in receipt of legal aid he has since September 1997 been a party litigant and he conducted the proof on his own behalf.

The first ground upon which the pursuers seek reduction of the July Will is the contention that at the time of its execution Mrs Kerr Boyle was suffering from senile dementia to an extent rendering her incapax, with the consequence that the July Will is void. Alternatively it is contended that the July Will is voidable, having been signed by Mrs Kerr Boyle while in an advanced state of facility and subject to undue influence by the defender.

Prior testamentary writings

Mrs Kerr Boyle left certain testamentary writings dated prior to the July Will. These had been framed by Mr George Dundas, solicitor, a partner in the firm of Wilkie & Dundas, Solicitors, Kirriemuir.

Mr Dundas became Mrs Kerr Boyle's solicitor in about 1978 following her removing from the former family home in Helensburgh to Kelly Castle in Angus. It appears that Mr Dundas' wife - Mrs Jean Dundas - initially made acquaintance with Mrs Kerr Boyle through a mutual interest in the history of the castle and local antiquities and that in the result Mr Dundas became both a friend of and solicitor to Mrs Kerr Boyle. Prior to moving to her last home at13 Dalhousie Street, Carnoustie Mrs Kerr Boyle lived for a time at the Dower House, Arbirlot, near Arbroath.

Mrs Kerr Boyle was living at that last address when on 7 November 1983 she executed in probative form a trust disposition and settlement framed on her behalf by Mr Dundas. In that trust disposition and settlement, after making certain minor specific requests, she left her entire estate equally to her two sons. Codicils framed by her solicitor, Mr Dundas, were executed by Mrs Kerr Boyle in probative form on 19 December 1984, 28 April 1987, 15 February 1991, 31 August 1991 and 13 December 1992. The earlier codicils related to specific bequests of corporeal moveables. The codicil of 15 February 1991 included among the special legatees the defender, to whom three specific pieces of furniture were bequeathed. The codicil of 31 August 1991 gave to the defender a further legacy of £5,000. Both of those codicils were revoked by Mrs Kerr Boyle's final codicil of 13 December 1992 in which among other directions, she directed her trustees to give to the defender any motor car which she might own at her death along with a pecuniary legacy of £1,000.

Accordingly as at the date of the last codicil the basic structure of Mrs Kerr Boyle's testamentary wishes was that, subject to certain specific minor bequests, including the provision to the first defender of the motor car and the sum of £1,000, her estate should devolve equally among her two sons.

The July Will

The July Will was, by contrast, not framed by Mr Dundas. It is not in probative form. It was accepted by the defender in the evidence which he gave that it had been drafted by him on his word processor and that a print of that draft had been presented to Mrs Kerr Boyle. The defender deponed that Mrs Kerr Boyle had signed it. Only he was present at the time at which she signed it. At his instruction she had written the words "adopted as holograph" and also at his instruction had subscribed using the unaccustomed signature "Neula Kerr Boyle", her standard signature being "N. Kerr Boyle".

The terms of the July Will nominated the defender as the executor. Perhaps more importantly, it directed that the defender should receive the whole estate of Mrs Kerr Boyle subject only to certain minor bequests including a legacy not exceeding £8,400 to Angus (to which in the event of Angus' predecease the first defender would succeed) and a legacy not exceeding £2,800 to Alasdair Kerr Boyle.

Mrs Kerr Boyle's testamentary capacity in July 1994

On 16 August 1994 - that is to say, one month approximately after the purported date of execution of the July Will - Mrs Kerr Boyle was admitted as an emergency case to Ninewells Hospital, Dundee following a fall at her home in Dalhousie Street, Carnoustie. Mrs Kerr Boyle had been in failing health for some considerable time and had had a number of prior hospital admissions including admission for treatment in Stracathro Hospital. She was transferred from Ninewells Hospital to Stracathro Hospital on 17 August 1994.

On admission to Stracathro Hospital she was seen by, among others, Dr James D. Fulton who on that day certified for the purposes of a petition for the appointment of a curator bonis that Mrs Kerr Boyle was:

"... a person of unsound mind, that this mental infirmity is permanent and that she is now, and always will be, incapable of managing her own affairs or of giving directions for their management".

On the previous day, while she was still at Ninewells Hospital Mrs Kerr Boyle had been seen by a general practitioner, Dr McKendrick, who stated in his certificate, number 5/4 of process:

"In my opinion, she suffers from senile dementia. This is a progressive mental disorder from which recovery is extremely unlikely. It is my opinion that she is not in a position to manage her own affairs or of giving instructions for their management and will continue to require full time nursing care."

On the basis of those certificates a petition was brought for the appointment of a curator bonis. It was opposed by the defender. The grounds of opposition advanced by those acting for him in that matter related solely to the suitability of the proposed curator, Mr Dundas. A similar position was recorded by the sheriff principal before whom the defender appeared personally in his appeal against the sheriff's appointment of a curator bonis. In January 1995 that appeal was dismissed and the appointment of Mr Dundas as curator bonis was accordingly affirmed.

When examining Mrs Kerr Boyle on her transfer to Stracathro hospital on 17 August 1994 Dr Fulton had the benefit of prior knowledge of Mrs Kerr Boyle as a patient. He was a consultant physician in general medicine but with a particular specialisation in the care of the elderly. His initial involvement with Mrs Kerr Boyle took place on 14 April 1994 when, following Mrs Kerr Boyle's admission on 10 April because of her failing health and a urinary tract infection brought to her general practitioner's attention by the first defender, Dr Fulton was asked for an assessment of her problems and future care. In his evidence to the court Dr Fulton explained that he considered that at that point in time the patient had had insufficient time to recover from the stress of admission; investigations were still underway; and her drug therapy been altered. Hence he advised (c.f. the hospital records, no. 16/10 p.29 of process) that the referral to him was premature.

Dr Fulton next saw Mrs Kerr Boyle on 21 July 1994 following her admission to Stracathro Hospital on 19 July 1994 with a history of what appeared to be haematemesis. On investigation that condition was thought to be due to a reaction to her having taken the pain killing drug Ibuprofen. Having examined Mrs Kerr Boyle Dr Fulton had a discussion with the first defender on 21 July 1994 when he explained that among the problems afflicting Mrs Kerr Boyle was dementia with both posterior and anterior components. That meant that she suffered from both memory and cognitive deficiencies on the one hand and behavioural disorders on the other. Dr Fulton advised of the use of a particular drug to assist with the latter. His findings are noted in No. 16/10 of process at page 60 and in the letter in the same production at page 30. Having declined any further investigation or treatment Mrs Kerr Boyle was allowed home on the following day.

When Dr Fulton next saw Mrs Kerr Boyle on 17 August 1994 he again took the view that the lady was suffering from dementia with both frontal and posterior features. She was noted by him as being "socially well preserved but MSQ today 3/10 correct". In explanation of the phrase "socially well preserved" Dr Fulton said that in conversation Mrs Kerr Boyle could keep up a reasonable façade but on deeper probing the deficiencies in her mental processes became readily apparent. A score of 3/10 MSQ indicated moderate to severe dementia but she was later to test 17/37 on the Newcastle Test which indicated moderate dementia. Dr Fulton took the view on 17 August 1994 that Mrs Kerr Boyle was suffering from Alzheimer's disease. Her condition on 17 August 1994 was very similar to her condition when he had seen her in July and he could not say that there had been any significant progression in the disease in that interval.

In view of the continuing behavioural problems exhibited by Mrs Kerr Boyle a decision was taken to invite Dr Susan Logie, a consultant psychogeriatrician at Sunnyside Hospital, Montrose, to advise on Mrs Kerr Boyle's condition and future treatment. Dr Logie examined Mrs Kerr Boyle at Stracathro Hospital on 26 August 1994 and as a result of that examination Mrs Kerr Boyle was placed on a waiting list for assessment in Ward 6 of the Sunnyside Hospital to which she was transferred on 14 September 1994. No significant alteration in Mrs Kerr Boyle's condition was noted prior to that transfer.

A broadly contemporaneous note of Dr Logie's findings on her examination of the patient on 26 August 1994 is to be found in her letter to Dr Fulton of 30 August 1994 (No. 16/10 p.68 of process) in which Dr Logie wrote inter alia:

"Cognitive testing was extremely difficult as she became quite defensive and told me that I should ask her brother who was a consultant in Aberdeen. However she appeared to be disorientated in time and largely in place and gave me a confused account of her family."

She concluded that:

"In summary therefore this lady presents with a picture suggesting a dementia of at least moderate degree with major behavioural problems. I have put her on the waiting list for transfer to Ward 6, Sunnyside Royal Hospital, for further assessment."

In her evidence Dr Logie explained that it was largely in view of the behavioural problems and the possibility of a depressive disorder that she considered that a psychiatric assessment was desirable.

While in Ward 6 of the Sunnyside Hospital Mrs Kerr Boyle was the subject of assessment by a multi-disciplinary team staffing that ward. That assessment confirmed the diagnosis of moderate dementia. Mrs Kerr Boyle showed evidence of short and long term memory impairment, disorientation in time, place and person and concentration. She required help with washing and dressing. She was not however clinically depressed. At a case review on 20 October 1994 it was decided that Mrs Kerr Boyle required long-term 24 hour psychiatric nursing care and that she should be transferred to Ward 1 in Arbroath Infirmary which was a psychogeriatric ward affording those facilities.

During her time in that ward Mrs Kerr Boyle continued under Dr Logie's consultant care. Dr Logie noted continuing evidence of progressively deteriorating dementia until Mrs Kerr Boyle's death on 28 October 1995.

Both Dr Logie and Dr Fulton considered that Mrs Kerr Boyle's dementia was the product of Alzheimer's disease. While accepting that, during life, the disease could only be diagnosed clinically, both doctors reached the conclusion that Alzheimer's was the most likely cause of Mrs Kerr Boyle's dementia for similar reasons. The disease was the most common cause of dementia and affected women twice as frequently as men. It was a progressive disease, beginning insidiously and gradually worsening. The history in Mrs Kerr Boyle's case was typical of Alzheimer's disease. The other common cause of dementia was cerebrovascular disease. However there were no signs of any focal neurological deficit - such as weakness of a particular limb - nor any evidence of a stepped deterioration in the degree of dementia. Were Mrs Kerr Boyle's condition brought about by a cerebrovascular deficiency one would expect to find either or both of those two features. Neither was present and the history was accordingly inconsistent with the dementia having its origins in cerebrovascular disease.

In relation specifically to Mrs Kerr Boyle's testamentary capacity on 16 July 1994 Dr Fulton was of the opinion that it was extremely unlikely that on that date Mrs Kerr Boyle was capable of managing her affairs or giving directions on their management. Had he been asked to examine her on that date with a view to deciding whether to grant a certificate in support of an application for the appointment of a curator bonis he would have granted such a certificate. Her state when seen by him on 21 July 1994 was not materially different from her state when he saw her in August of 1994. Indeed her mental state in April 1994 showed dementia to a similar degree.

Dr Logie was of a similar view. Given the nature of Alzheimer's disease and her observation of the continuing progress of Mrs Kerr Boyle's dementia after her initial examination on 26 August 1994 Dr Logie expressed the opinion that it was very unlikely that Mrs Kerr Boyle's mental state had deteriorated significantly in the interval between 16 July and 16 August 1994. A certificate justifying the appointment of a curator bonis would have been warranted on 16 July 1994. Consistently therewith, the conclusion expressed by Dr Logie in her written report was that in her opinion Mrs Kerr Boyle would have been suffering from a significant degree of dementia on 16 July 1994 and that as a result of this her judgement and the ability to understand a procedure such as making a will were very likely to have been impaired.

The only medically qualified witness tendered by the defender was Dr Steven Pegg, currently a general practitioner but formerly a senior house officer in Arbroath Infirmary during a part of the period of time in which Mrs Kerr Boyle was being cared for in Ward 1 of that infirmary, following her assessment in Sunnyside.

It appears that Ward 1 of Arbroath Infirmary - the psychogeriatric ward - was, in administrative terms, an off-shoot of Sunnyside Hospital but by way of informal practical arrangements the general medical staff in Arbroath Infirmary would attend to minor medical problems arising in Ward 1 in order to obviate the need for medical staff to travel from Montrose to Arbroath. Dr Pegg thus visited Ward 1 on that basis. He was not involved in any actual treatment or assessment of the mental state of Mrs Kerr Boyle but simply spoke with her on some of his visits to the ward. On the basis of those conversations Dr Pegg considered Mrs Kerr Boyle to be a much brighter patient than those generally treated in Ward 1. It appeared to me, from his replies to questions asked by the defender, that Dr Pegg had formed distinct private views concerning the propriety or morality of treating a patient in an NHS psychogeriatric ward where the patient had funds which, Dr Pegg assumed, would permit care in a residential home. He made that assumption as regards Mrs Kerr Boyle on the basis that she had said to him that she had lots of money and on the basis that her testamentary arrangements were being litigated. On being adverted in the course of cross-examination to the fact that the team assessment at Sunnyside had concluded that Mrs Kerr Boyle's condition could not be treated in a residential home, Dr Pegg appeared then to assert that the existence of the litigation demonstrated the availability of funds for private psychiatric nursing on a 24 hour basis. However, importantly, touching the essential question of Mrs Kerr Boyle's testamentary capacity and her mental state Dr Pegg readily agreed that he could not take issue with Dr Logie's assessment of that testamentary capacity at the relevant date. Dr Pegg also agreed that if Mrs Kerr Boyle were suffering from Alzheimer's disease it would be unlikely that her condition would have changed materially between 16 July and 16 August 1994. Accordingly there was nothing in the evidence given by Dr Pegg which conflicts with Dr Logie and Dr Fulton's assessment of Mrs Kerr Boyle's testamentary capacity at the relevant date.

The defender had however other points to advance in relation to the central issue of the deceased's testamentary capacity and, in particular, to the medical evidence.

Firstly, he pointed to the fact that in his letter of 14 April 1994 to Dr Callaghan (hospital notes, 16/10 of process, p.28), Dr Fulton made no mention of Mrs Kerr Boyle's suffering dementia. That is no doubt true but in that letter Dr Fulton did not describe or detail any of the patient's conditions. He was simply advising Dr Callaghan, by whom he had been invited to assess the patient, that it was premature for him to give an assessment as to her future care at that point. The defender further pointed to a letter by a Dr Kiely dictated on 27 June 1994. Dr Kiely (who was not called as a witness for either party) appears to have been a senior house officer at Stracathro and the letter is addressed to Mrs Kerr Boyle's general practitioner. That letter was concerned with the urinary tract infection. It made no mention of dementia. The defender also observed that as respects the letter of 26 July 1994 by a senior house officer which was written subsequently to Dr Fulton's examination of the patient "dementia with behavioural problems" came third on the list of diagnoses. By inference, contended the defender, the dementia was a minor matter in July and was not present previously. The obvious counter to these points is, I consider, to be found in the evidence of Dr Logie who pointed out that dementia is not treatable. Hence the physicians asked to deal with the physical problems concentrate on them. The absence of any mention of dementia in the letter of 27 June 1994 is not by any means to be taken as meaning that dementia was not present. I accept what Dr Logie had to say on this matter. This point is without substance.

A further matter raised by the defender was the issue of urinary tract infection. Both Dr Fulton and Dr Logie accepted that a urinary tract infection in the elderly, particularly the demented elderly, might by reason of the toxins released into the circulatory system increase the patient's sense of confusion. There was evidence that from time to time Mrs Kerr Boyle did suffer from urinary tract infection and there was a document to the effect that on her admission to Ninewells Mrs Kerr Boyle did have such an infection. However both of the doctors pointed out that any consequences of the urinary tract infection would be resolved when the infection was treated and cleared up. By the time at which Mrs Kerr Boyle was seen by Dr Logie her urinary tract infection had in fact cleared up. Moreover, her mental condition did not improve or deteriorate in accordance with the infected state of the urinary tract. There is thus in my view no ground for regarding Mrs Kerr Boyle's chronic, unrelieving and progressively deteriorating mental deficiencies as attributable to a urinary tract infection.

The nature of her condition is also the clear answer to another point which the defender sought to make. This was that it was neither competent nor appropriate to make "a retrospective diagnosis". As I understood the point it was to the effect that unless a doctor had actually seen and examined Mrs Kerr Boyle on 16 July 1994 no view whatever could be advanced as to her mental capacity on that day. This proposition is plainly unsound, particularly given the nature of Mrs Kerr Boyle's condition.

By way of challenge to Dr Fulton's opinion regarding Mrs Kerr Boyle's testamentary capacity on 16 July the defender put to Dr Fulton that at the discussion with him on 21 July 1994 Dr Fulton had advised him to get Mrs Kerr Boyle to sign a power of attorney as soon as possible, "while she could still understand". Dr Fulton, who struck me as a truthful and very careful witness, stated that he had no recollection of ever giving such advice. He later expanded on that by indicating that giving such advice would have been contrary to the opinion which he had formed. When the defender came to give evidence himself he deponed that Dr Fulton had made such a suggestion. Thereafter, said the defender, there were "strange happenings" in that Mrs Kerr Boyle was being questioned about her finances by her solicitor Mr Dundas. This, said the defender, made him and her uncomfortable. As I understood the defender's evidence, this discomfort led him to arrange that Mrs Kerr Boyle's bank account be transferred to a different, namely his, branch of a different bank and to procure the signature of a power of attorney in his favour, dated 4 August 1994.

Insofar as the defender sought to link the procuring of the power of attorney in his favour on 4 August 1994 with advice purportedly given to him by Dr Fulton on 21 July 1994 I do not believe him. I do not accept his assertion that such advice was ever given by Dr Fulton. It seems improbable that such advice would have been given. I believe that if it had been given it would have been noted by Dr Fulton. Further, had the advice been given I believe that the defender would have acted upon it immediately and not waited until 4 August 1994. I therefore reject the defender's evidence on this point.

The signing by Mrs Kerr Boyle of a power of attorney in favour of the defender on 4 August 1994 was followed by her signing a similar power of attorney in favour of her solicitor Mr Dundas on 5 August 1994. The execution of that power of attorney on 5 August 1994 was witnessed by her upstairs neighbour, Mr Michael Blair, who is also a solicitor, and a general medical practitioner though not, I think, Mrs Kerr Boyle's general practitioner. From this fact the defender sought to draw the inference that those gentlemen must have considered Mrs Kerr Boyle to have appropriate mental capacity. The general practitioner did not give evidence. It is true to say that at the time Mr Dundas and Mr Blair appeared to think that Mrs Kerr Boyle was sufficiently alert to be able to sign a power of attorney. Mr Dundas however described his view as being that her capacity was "borderline". When he learned that she had signed a power of attorney in favour of the defender on the preceding day, of which she had no evident recollection at all when she had been seen by him, Mr Dundas had no doubt that she did not understand what she was doing. That impression was reinforced by learning that she had in fact signed a further power of attorney in favour of the defender on 11 August 1994. With the benefit of that quickly obtained hindsight Mr Dundas stated that he was satisfied that she was not at all fit to sign deeds such as a power of attorney. Counsel for the pursuer also pointed out in his submissions that a particular feature of Mrs Kerr Boyle's case which was remarked upon by the medical witness was her ability to put up a good social façade masking her underlying lack of comprehension. It was therefore understandable that Mr Dundas and Mr Blair might form the view that Mrs Kerr Boyle was just able to sign a power or attorney on 5 August 1994. I accept that submission. In my view the impression formed by Mr Dundas and Mr Blair at the time of their seeing Mrs Kerr Boyle on 5 August 1994 does not undermine or detract from the medical evidence which I heard.

Finally, having been cross-examined by counsel for the pursuer the defender, from the witness box, sought to play a sound recording taken by him on a tape recorder of a conversation between him and Mrs Kerr Boyle on the occasion of his visit to Mrs Kerr Boyle in Stracathro Hospital on 13 September 1994, just prior to her transfer the following day to Sunnyside for assessment. Counsel for the pursuers objected to this but I allowed the tape to be played subject to reservation of that objection, the fundamental aspect of which was that the tape recording should have been put to the medical witnesses if it were to be suggested that it undermined their testimony. The recording had been made by the defender's using a microphone concealed in his cuff. It appears from what I heard of the tape recording that part way through his visit to Mrs Kerr Boyle, the defender disclosed the presence of the microphone to her but from such response as was made by Mrs Kerr Boyle it is doubtful whether she properly understood the disclosure.

As I understood it, the defender's purpose in playing over the tape recording was to enable me to form a view of Mrs Kerr Boyle's mental capacity on that date, the defender's contention being that the tenor of the conversation demonstrated an ability on Mrs Kerr Boyle's part to understand important matters and express her wishes. Insofar as it was being suggested that the tape recorded conversation conflicted with the medical testimony it should of course have been put to the doctors led by the pursuers for their comments but this omission is perhaps understandable given that the defender was a party litigant. However, in the event, the clear impression which I derived from listening to the tape recording of what was said to Mrs Kerr Boyle and said by her, or not said by her, did not lead me, as a layman, to have any doubts whatever about the expert medical views formed by Dr Logie and Dr Fulton.

In these circumstances I am wholly satisfied that there is no ground for rejecting the medical testimony that on 16 July 1994 Mrs Kerr Boyle lacked testamentary capacity.

I would record that in his submissions on behalf of the pursuers respecting this branch of their case counsel referred me to Nisbet's Trustees v Nisbet (1871) 9 M 937 and Sivewright v Sivewright's Trustees 1920 S.C. (H.L.) 63. In the latter case Lord Atkinson in the course of his speech quoted with approval from the Opinion of Cockburn C.J. in Banks v Goodfellow regarding the power of making a will:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, and prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound would not have been made".

As already stated, I am satisfied on the medical evidence that at 16 July 1994 Mrs Kerr Boyle did not have that necessary understanding. I am fortified in that view by inter alia, the evidence of Mr Alasdair Kerr Boyle that at some time prior to that date his mother was confused as to him, his father, and whether or not she was in Helensburgh.

I therefore hold that at 16 July 1994 Mrs Kerr Boyle's mental state was such that she did not have the requisite testamentary capacity. She was therefore incapax. The July Will for which the defender thus pretends is void and the pursuers are entitled to reduction of it.

The alternative case - facility and undue influence

My findings that Mrs Kerr Boyle lacked testamentary capacity at 16 July 1994, the date of execution of the July Will, are of course sufficient for the disposal of the case. It is however appropriate that I give some expression to the views which I have formed on the alternative case which seeks reduction on the ground of facility and undue influence. I shall approach that question by considering first the relationship between the defender and Mrs Kerr Boyle.

It appears that the defender and Mrs Kerr Boyle initially became acquainted through their membership of the same church. The defender stated in evidence that this occurred in about 1986 or 1987. Sometimes accompanied by his son the defender would visit Mrs Kerr Boyle in her house at Dalhousie Street after church on Sundays and he would occasionally assist her by doing minor repair or maintenance jobs about her house. The Sunday visits became a regular occurrence. In June 1991 Mrs Kerr Boyle was the victim of an assault and robbery in her house. Once she had managed to undo the ligaments with which she had been tied up by the assailants she got a neighbour to telephone for the defender and the police. In order to reassure her, the defender stayed overnight in the house for a few nights. Thereafter the defender looked in on a daily basis to see that she was alright. The defender also assisted her with making an insurance claim arising out of the robbery and, noting that she was under-insured, reorganised her insurance arrangements. The defender described the robbery in 1991 as being "pivotal" to the relationship which developed thereafter. It appears that having rendered that assistance in the aftermath of the assault and robbery the defender began to assist Mrs Kerr Boyle daily in her domestic arrangements. He took to dealing with domestic accounts, such as electricity bills, on her behalf. By 1992 Mrs Kerr Boyle's health was failing. At a visit made on 9 January 1992 at midday the general practitioner recorded "in bed - lonely - [homehelp] does lunch. Ron [the defender] in daily + feeds her at night ...". An entry on 8 September 1992 records that the defender was in "most days".

In the course of 1992 the defender took up occupation of outhouses adjoining the rear of Mrs Kerr Boyle's home (which was a ground floor flat in a converted Victorian villa) and did works to the outhouses to enable him to use them for the purposes of his stained glass business. The defender also had the use of Mrs Kerr Boyle's garage space for storing materials for the purposes of his business. The defender subsequently took up occupation of two rear bedrooms in the house, one of which he used as an office for his business and the other of which was used also for the storage of materials. The defender ran his business from the house having closed down his business premises in Brechin. The defender also had the use of Mrs Kerr Boyle's car, which she no longer was able to drive. In due course the car was exchanged by the defender for a van. The defender accepted that no rent or other pecuniary consideration was paid by him for the use of those parts of Mrs Kerr Boyle's house which he occupied for his business, or for the use of the car. According to the defender this arrangement was seen by both him and Mrs Kerr Boyle to be to their mutual benefit since he was present in the house during the day and able to assist in her physical care, as well as administering to her financial affairs.

There was evidence from a number of witnesses that the defender's presence discouraged others from visiting Mrs Kerr Boyle. Mrs Jean Dundas stated that she would quite often telephone and be told by the defender that it was not convenient for her to speak to Mrs Kerr Boyle. Mrs Dundas had the impression that others too were made to feel unwelcome by the defender. A similar impression was formed by Mr Blair, the upstairs neighbour, and by Mrs Balneaves who also spoke to occasions on which the defender had attempted to dissuade her from visiting Mrs Kerr Boyle and on which he had admittedly unplugged Mrs Kerr Boyle's bedside telephone in order that contact should not be made with her. There was also evidence, largely undisputed by the defender, that difficulties arose between him and the homehelp service. It is apparent that by 1994 Mrs Kerr Boyle was very lonely and while her increasing immobility (and no doubt the immobility of other elderly friends) played a rôle in her increasing isolation I have the distinct impression from the evidence that her isolation was encouraged by the defender who plainly took no steps to encourage others to visit her.

It is unquestionable that the defender did provide tangible benefits for Mrs Kerr Boyle by assisting in her physical care and, no doubt, by attending to minor matters such as the payment of the electricity bills. However as her physical and mental health was declining it was apparent to others that those arrangements for her care were not satisfactory. Neither of her sons lived locally. Angus lived and worked in Australia. Alasdair Kerr Boyle's employment dictated that he live in Bedfordshire and involved a deal of travelling to the mainland of Europe. Alasdair Kerr Boyle visited in person at intervals - perhaps four or five times per year - but he kept in regular touch by telephone and it appeared that Mrs Kerr Boyle regularly telephoned him. Mr Alasdair Kerr Boyle began to have material concerns for his mother's health towards the end of 1992. By that time she was showing signs of confusion. For example she would mistake him for his father or his brother and she would think that she was in the former family home in Helensburgh. As her condition deteriorated during the course of 1993 Mr Alasdair Kerr Boyle explored the possibility of care in a nursing or residential home. He visited various nursing homes and it was in due course arranged that Mrs Kerr Boyle should go into a nursing home in Arbroath for a week's trial period. That trial was not successful since she wished to stay in her own home - and it has to be said that the defender greatly encouraged her in that wish. It was apparent to Mr Alasdair Kerr Boyle that, if his mother were to stay at home, 24 hour professional nursing care would have to be sought. His estimation that such care would be required is confirmed by, among other things, the entry in the general practitioner's notes for 16 May 1994 [p.108 of the general practitioner notes, number 13 of process] which records the wholly unsatisfactory state of care found by general practitioner Dr Copeland. In order to pay for nursing care at home Mr Alasdair Kerr Boyle was prepared to raise finance with which to buy his mother's house at its open market value. That would give her funds with which to pay for the nursing care and Mr Alasdair Kerr Boyle would allow her to continue to occupy the house. Having seen this as a possible solution to the problem of his mother's care Mr Alasdair Kerr Boyle visited his mother on 2 March 1994 in order to discuss it with her. He invited Mr George Dundas to be present at the discussion so that his mother could have the benefit of his advice. The discussion between Mrs Kerr Boyle, her son and her friend and solicitor was secretly tape recorded by the defender whose productions in this litigation include the tape and a transcript by him of parts of the tape recording secretly made of that private discussion. So far as concerns the content of the discussion the proposal was explained to Mrs Kerr Boyle and the advice was that she should accept it but no decision was taken. It was made plain to her that pressure was not being put on her and that the decision should be hers because it was her life. It should also be remarked that Mr Alasdair Kerr Boyle made clear that if he were able to raise the finance and buy the house he would not allow the defender to continue to occupy parts of it for the purposes of the defender's business. The defender stated in his evidence that he made that secret recording of the private discussion between Mrs Kerr Boyle, her son and Mr Dundas "for Mrs Kerr Boyle's protection". However, while that may be the defender's stated reason, I would make plain that nothing in the evidence discloses any conceivable objective ground for his taking that view.

In my opinion, the defender's action in secretly recording that private discussion is of significance in that it exemplifies the extent to which the defender had become possessive of Mrs Kerr Boyle. It was apparent from the evidence as a whole, and also from the defender's demeanour in the presentation of his case, that by early 1994 he had become deeply possessive of Mrs Kerr Boyle and wished to have almost exclusive charge not just of her financial affairs but of every aspect of her life. On the defender's own admission he had taken to controlling the entirety of her financial affairs. That control even extended to his objecting to Mrs Balneaves' having acceded to Mrs Kerr Boyle's request, while Mrs Kerr Boyle was in hospital in 1993, to buy her three nightdresses. The objection was on the ground that he was her "administrator". The defender was assiduous in maintaining to those with whom he came into contact in the social work department and in the medical sphere that he be regarded as being Mrs Kerr Boyle's "carer". Shortly after the conversation which he had secretly tape recorded on 2 March 1994 the defender had Mrs Kerr Boyle sign the document dated 7 March 1994, number 5/2 of process the body of which states:

"I have authorised Mr Ronald E. Wilson who (sic) I have nominated as my next of kin to act and speak on my behalf in all matters including health, personal, legal and financial. Please extend to him all the attention and courtesies you would normally give to me personally."

The defender sought to control and instruct the homehelps in a manner which caused difficulties with them. Without descending into details the difficulties were such that intervention at a high level was required with a view to their resolution. I have already noted the discouraging effect which the defender had in relation to contact between Mrs Kerr Boyle and other friends and visitors. It is also to be noted that later, in July 1994, on learning that Mrs Kerr Boyle's bank had obtempered a mandate to disclose details of her transactions in her bank account to her solicitor, Mr Dundas, the defender took immediate steps to have her account transferred to the local branch of another bank with which he himself had his account. In that connection it may also be remarked that it was evident, and indeed accepted by the defender, that among the cheques made out by him and signed by Mrs Kerr Boyle were a number of cheques drawn in his own favour including, for example, a cheque for £700 on 8 June 1994 and a further cheque for £500 on 23 June 1994. The former was explained by the defender as being a payment to him enabling him to purchase a trailer for his business. The latter was said to be a payment for a lawnmower which he had purchased for maintaining the lawn in Mrs Kerr Boyle's garden. The manner in which that explanation was offered by the defender was, to say the least, not persuasive and I disbelieve him.

In summary I consider that by at least the beginning of 1994 Mrs Kerr Boyle had become highly dependent on the defender both in relation to her physical care and companionship and in the administration of her day to day financial affairs. In addition to making out cheques for her signature the defender agreed that he was in the habit of typing letters or other documents which he would put before for her signature. He accepted that she trusted in him.

Against that background I turn to the circumstances attending the defender's involvement in Mrs Kerr Boyle's testamentary arrangements.

Mr Scott Milne, a solicitor with Messrs Thorntons, gave evidence that in May 1994 he received from the defender a sealed envelope which, when he was eventually instructed to open it, contained a "homemade" Will bearing to be signed by Mrs Kerr Boyle. It was plainly defective as a testamentary writing and he returned it under cover of the letter number 16/8 of process in which Mr Milne pointed out that he would be willing to prepare a new Will but the instructions would have to come from Mrs Kerr Boyle directly. By way of reaction to that, Mr Milne was then asked by the defender to go immediately to see Mrs Kerr Boyle, in hospital, in the defender's presence. Mr Milne deponed that his response was that he would see Mrs Kerr Boyle at a time convenient to him. Having consulted with his partners in relation to what I may describe as the deontological issues, Mr Milne went to see Mrs Kerr Boyle on 15 June 1994 in Stracathro Hospital. Mr Milne said in evidence that he introduced himself; that he explained that he had been asked to call by the defender concerning her desire to make a new will and to grant a power of attorney; that Mrs Kerr Boyle responded by saying that George Dundas was her solicitor; that she repeatedly referred to Mr Dundas as her man of business; that she said that he and his wife were her personal friends; that she indicated that she did not wish to make a new will or to grant any power of attorney; and that she also said that she did wish to leave something to Mr Wilson [the defender] but she did not state in terms what she had in mind. Mr Milne's discussion with Mrs Kerr Boyle lasted approximately twenty minutes. He left on the basis that he would ask for Mr Dundas to come to see her. Mr Milne thereafter informed Mr Dundas of his visit to Mrs Kerr Boyle. In the evidence given by the defender (in cross-examination) he accepted that the homemade will delivered by him to Mr Milne had been prepared by him on his word processor and that its provisions were basically to the effect that whole estate would devolve upon the defender. On reporting to the defender his visit to Mrs Kerr Boyle Mr Milne received in return from the defender a fax (No. 19/5 of process) in confused terms expressing anger at Mr Milne for what he had done including, it appears, having got in touch with Mr Dundas. The fax included this passage:

"You were specifically told not to discuss details of what she wanted done. What a mess it is now!"

The evidence give by Mr Milne was led under reservation of an objection by the defender to its admissibility on the ground that it breached client confidence. In answer to that objection counsel for the pursuers (and Mr Milne) pointed out that in respect that the defender approached Mr Milne with a request to attend to Mrs Kerr Boyle's testamentary affairs he was in fact acting as agent for her. Any professional privilege therefore rested with Mrs Kerr Boyle. The defender's response by fax also fell within the scope of that agency. I consider that the submissions of counsel for the pursuer are sound and I therefore reject the objection to the admissibility of this evidence.

Subsequent to that attempt to act in respect of Mrs Kerr Boyle's testamentary wishes a further purported testamentary document was prepared by the defender on his word processor and, according to him, was signed by Mrs Kerr Boyle on 11 June 1994. That document is number 5/5 of process. If valid it would have made the defender the principal beneficiary of Mrs Kerr Boyle's estate. As was the case with the homemade Will delivered to Mr Milne, no one was present at the signature of this document by Mrs Kerr Boyle. It was plainly invalid as a testamentary document.

The principal characteristics of the July Will have already been described in this Opinion. It may however be conveniently reiterated that the July Will was also composed by the defender on his word processor. No one else was present at its purported signature by the late Mrs Kerr Boyle. The July Will likewise constitutes the defender as her principal beneficiary. It was not even said by the defender that he had read over its contents to her and its execution must be seen in the context of her being accustomed to sign typewritten documents prepared by the defender.

There is no evidence that Mrs Kerr Boyle was given any separate professional advice outwith the presence of the defender in relation to the terms of the July Will or any of the two preceding purportedly testamentary documents signature of which was obtained by the defender. Belatedly, in the course of his own evidence, the defender sought to suggest that he and Mrs Kerr Boyle had together discussed matters relating to her testamentary wishes with one Betty Bonkle, said by the defender to be a retired solicitor friend of Mrs Kerr Boyle. No mention of the giving of professional or quasi professional advice by Mrs Bonkle is contained within the pleadings on behalf of the defender. No mention of Mrs Bonkle was made in any of the evidence of either the pursuers' witnesses or the defender's witnesses (all of whose evidence was taken prior to the defender giving evidence on his own behalf). Betty Bonkle was not tendered as a witness. She was not even included on the list of witnesses tendered by the defender in person. Insofar as the defender suggested that Betty Bonkle may have given independent legal advice I do not accept that suggestion.

Counsel for the pursuers properly referred me to a tract of legal authorities on the issues of undue influence and facility. It is unnecessary to refer to them all. In Clunie v Stirling (1854) 17 D 15 the Lord Justice Clerk said at p.18 that the issue, of facility and circumvention was:

"intended to embrace any case in which where a person has become easily imposed upon, or ready to yield his assent, it may be upon a particular subject, whether from old age or actual disease, or the effects of the same on the nerves, leaving an unnatural anxiety and nervousness upon any particular subject, especially the state of his future income, when he has fallen into a helpless situation, another leads him on into a highly disadvantageous bargain to his own benefit or that of the party for whom he is acting and who adopts the same. The actual mode or particular acts of circumvention may not be discoverable or easily proved. But the result may demonstrate that the party was really circumvented in the sense of the issue when he was led into the transaction under challenge. ..."

Counsel also referred to the passage in Barry v Butlin (1838) II Moore at 480 in which it was said by Mr Baron Park:

"If a party writes or prepares a Will under which he takes a benefit that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does express the true will of the deceased."

That passage was referred to approvingly by Lord Shaw of Dunfermline in Forest v Lowe's Trustees 1909 S.C. (H.L.) 16 at 18.

In my opinion even if, contrary to the view which I have reached on the first branch of the pursuers' case, it were to be held that it had not been shown that on 16 July 1994 Mrs Kerr Boyle was incapax, I am in no doubt whatever that she was by reason of her age, physical weakness and progressing dementia in a state of facility. She would readily sign whatever was put before her. Thus, simply by way of example, having given a mandate to Mr Dundas in early July in relation to her bank account she was persuaded to agree to transfer that account when the defender resolved upon the desirability of that course and arranged for the attendance of the bank employee, Mr Swierczek. She signed three powers of attorney within a single week at the beginning of August. She signed the letter 16/9 of process dated 10 August dismissing the services of Mr Dundas but on 13 August 1994 told Mr, and also Mrs, Dundas that she had no recollection of signing such a letter.

Putting matters shortly I am completely satisfied that by July 1994 the defender had acquired a position of very considerable control and influence over Mrs Kerr Boyle both in relation to her financial affairs and in respect of her physical care. Her mental health was unquestionably impaired. She was physically dependent upon the defender. The defender was plainly possessive of Mrs Kerr Boyle both emotionally and in terms of exercising control over her financial affairs. He had attempted to procure her execution of testamentary writings in his favour on earlier occasions. In these circumstances I am satisfied that Mrs Kerr Boyle's signature of the July Will was, at the least, procured by the use of the defender's control and influence over her at a time when she was plainly in a state of facility.

The pursuers must also succeed on the alternative case.

In these circumstances I shall grant decree reducing the pretended Will referred to in the first conclusion of the summons. No motion was made to me by counsel for the pursuers in respect of the second conclusion for interdict of the defender from intermitting with the estate of Mrs Kerr Boyle.