Scottish Court of Session Decisions

Davidson & Ors v. [2003] ScotCS 14 (24 January 2003)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Marnoch Lord Macfadyen	XA7/02 OPINION OF THE COURT delivered by LORD MARNOCH in SPECIAL CASE for NORMAN ROBERT DAVIDSON Party of the First Part; and DOREEN CONVY AND MOIRA TONAUER Parties of the Second Part; and MRS ISOBEL LINDSAY, HARRY RONALD PEEL, MRS DORIS ALICE JACK, JOHN SIMMONTE AND JOANIE A SIM Parties of the Third Part: _______

 

 

Act: S.A.L. Wolffe, Simpson & Marwick; (Part of First Part)

Alt: Primrose, Balfour & Manson; (Parties of Second Part)

(No appearance by Parties of Third Part)

24 January 2003

1. This is a Special Case in which the issue raised for decision is whether a brown envelope bearing the words "My Will" and, underneath, the name "Agnes Bessie Sim", together with its contents, constitutes a valid testamentary writing of the late Agnes Bessie Sim, who died on 8 January 2000. The writing on the envelope was in the hand of Miss Sim. The envelope was unsealed and contained a single sheet of paper, on one side of which was the following writing, again wholly in the hand of Miss Sim :-

"I Agnes Bessie Sim, residing at 42 Cowan Road, Edinburgh, in order to settle the succession of my means and estate after my death do hereby assign, dispone, convey, bequeath to and in favour of Norman Robert Davidson, residing at 15 Carfrae Road, Edinburgh, aforesaid as his own beneficial property my whole means and estate, heritable and moveable, real and personal, wherever situated which shall belong to me or over which I have power of disposal at the time of my death. I nominate the said Norman Robert

Davidson to be my sole executor. This is written by my own hand in Edinburgh on the tenth day of June Nineteen Hundred and Ninety-three".

2. On behalf of the First Party, Norman Robert Davidson, it is maintained that the envelope and document taken together constitute a valid testamentary writing. This is disputed by the Second Parties, who are next-of-kin of Miss Sim, while the Third Parties, who are other next-of-kin, advance no contention one way or the other.
3. There is a narrative in the Case to the effect that the late Miss Sim "signed documents in various ways" but it is agreed that one of these ways was by the use of the name "Agnes Bessie Sim". Nothing turns, therefore, on the use of that particular name. The real question is whether, in the circumstances, it can properly be regarded as a "subscription" of the testamentary writing contained in the envelope. As to the meaning and purpose of subscription in this context, we remind ourselves of what was said by Lord Trayner in Foley v. Costello, (1904) 6 F 365 at p. 369:-

"I think the law of Scotland requires subscription as the essential and only admissible evidence of a concluded expression of will on the part of a testator. It has been so decided more than once. The cases of Skinner 11 R 88 and Goldie 13 R 138, referred to at the debate, are, I think, conclusive upon this matter. In my opinion the rule is inflexible - no subscription, no will - and to admit the consideration of facts and circumstances to modify that rule would be very inexpedient and dangerous."

4. In the course of her submissions Mrs Wolffe, for the second parties, referred us to a long line of authority commencing with Dunlop v. Dunlop (1839) 1 D 912 and ending with Ronald's Trustees v. Lyle 1929 S.C. 104. However, it seems to us that the proper starting point in the present case is the decision of the court of seven judges in Taylor's Executrices v. Thom 1914 S.C. 79. In that case, which has some similarities to the present case, a document was found in the repositories of the deceased Miss Jessie Taylor enclosed in an unsealed envelope on which was written "My will." The document, which was holograph of the deceased and written on one side of a sheet of paper, contained a list of bequests which disposed of the whole of the deceased's estate. It was headed, "Sunnybank Alford My last Will Jessie Taylor", but was not signed by her at the end. The question in the case was whether the heading to the document could in some way be construed as an adoption of what followed and that question was answered in the negative. There are, however, some valuable observations regarding earlier authority and, in particular, the cases of Dunlop v. Dunlop and Russell's Trustees v. Henderson (1883) 11 R 283. The second of these also involved, inter alia, an envelope. For present purposes Lord Johnston's Opinion is particularly valuable and it merits extensive quotation. At pages 85-88 Lord Johnston said:-

"The law of the subject has I think been gradually settled by a series of cases during the last seventy years, and settled in the direction of increasing strictness in application, in the case of the execution of wills - and this I think for sound reasons, because wills, in the matter of their execution, stand in a different position from other documents. In regard to wills there can be no such thing as delivery, rei interventus, or homologation, to validate an unsigned document. On the other hand a will is required "not only to be the true writing of the deceased, but also the completed act of his will." - Lord Mackenzie in Dunlop's case. There are, no doubt, in the cases to which I shall advert, expressions of individual Judges which would leave the law on the subject much more loose, but I think that it has now hardened into the following:- 1, To validate a will there must be signature; 2, that signature must be directly or indirectly by subscription; 3, external facts and circumstances cannot be admitted to supply the want of subscription.

The case of Gillespie 10 S. 174, in its second branch, would be an authority against the first two of these propositions. But it cannot stand in view of subsequent decisions, and Lord Balgray's idea that a document not signed could be considered "to be legally signed to all intents and purposes" is one which cannot be entertained.

The pure question arose shortly after, in Dunlop's case, and it was emphatically decided that an unsubscribed will was invalid, though holograph, though containing the testator's name in initialibus, and a declaration that he thereby made his last will and testament, and though purporting to be a universal settlement with residue clause. The Court felt themselves clear of all other considerations, 'because the writing in dispute stands alone.' But Lord Cockburn, Lord Ordinary, says, where the Court has arrived at seemingly opposite results it has never been 'by merely looking at the unsubscribed writing by itself, but always incorporating it with other matter with which it has a necessary connection. This matter has generally consisted of two circumstances, one or other or both of which have been invariably required to warrant any relaxation of the strict rule. These are that the defects in the instrument have been supplied, 1^st, By other unobjectionable writings connected therewith by the testator; or 2^nd, By evidence of facts extrinsic of the disputed instrument, but linked to it. So that, in truth, it has never been the unsubscribed writing alone that has been sustained.' I am not aware of the cases to which his Lordship refers, in which the Court are supposed to have arrived at seemingly opposite results. The only prior cases referred to at the hearing were Titill [M. 16, 959] and Gillespie. Lord Fullerton also said in agreeing in the judgment - 'I do not wish to be understood as saying that there are no circumstances in which an unsubscribed deed should receive effect. There may be cases where facts and circumstances occur, sufficient to instruct that an unsubscribed holograph deed was nevertheless the last will of the deceased. But there are no such circumstances here.'

I think that it must now be accepted that Lord Cockburn's second proposition, apparently concurred in by Lord Fullerton, will not hold. And I further think that his first proposition requires consideration, limitation, and definition. It is this point only I think which makes the present case of importance, and justifies its being discussed by a Court of seven Judges. Had I thought it depended on special circumstances, as I gather some of your Lordships do, I could hardly have consented to that course being taken. My own conclusion, after carefully considering the authorities, is that Lord Cockburn's statement that the defect of subscription can be supplied 'by other unobjectionable writings connected therewith by the testator' can mean no more than that there must be subscription, but that that subscription may be indirect, as I have put it in the above propositions, that is, by the subscription of some other document connected by the testator with the unsubscribed will. Such other document must be unobjectionable in itself and therefore, whether holograph or tested, must be subscribed. It must be connected by the testator with the incomplete will. But what precisely is to be understood by 'connected therewith' is most difficult to determine, and there is risk of derogating from the rule by the exception. I think that it must be a document so linked with the unsubscribed will as, by its own subscription, unequivocally to supply the want of a subscription to the will. ...

... In this relation it is necessary to examine the case of Russell's Trustees, where a lady left a holograph writing commencing: 'I, Margaret Russell, do hereby make my last will and testament revoking all other wills.' She dated, but did not subscribe it. It was found contained in a sealed packet, bearing on the outside her signature and the words "James Henderson," this Mr Henderson being Miss Russell's nephew and the executor nominated in the above writing. Attached to the packet by a string was an envelope addressed 'to James Henderson from Margaret Russell,' containing a letter with a date of the same month and year as the above writing, holograph of Miss Russell, stating that she had re-written her will "for this year," and giving directions about her funeral. It was signed with her Christian name only, and there was no proof that she was in use so to sign. The whole were stated to have been delivered by Miss Russell to Mr Henderson, with the statement that her will was therein contained, and that they were not to be opened until her death. The Court held that the circumstances supplied the defect of subscription, and the writing was sustained as a valid will. As this question has been sent to seven Judges, I conceive that I am entitled, if not bound, to examine this judgment, which I should not otherwise do, and I venture to take exception to much which was stated in support of it, and even to entertain grave doubt of the result arrived at. Lord Craighill pronounced the leading judgment, and he proceeds on a view of the virtue and competency of a proof of facts and circumstances which is not consistent with the cases to which I have just referred, and in particular gives weight to the admission, for the question was raised in a special case, of what Miss Russell said in delivering the sealed packet to Mr Henderson, evidence of which, I think, would have been entirely inadmissible. But his Lordship also finds sufficient token of authentication under the hand of the lady in the envelope and its contents which was attached by a string to the sealed packet containing the alleged will, and which he held to be an appendage to the will. I should myself have thought that there was neither an intelligible subscription nor an unequivocal connection of the document bearing that subscription by the testator with the unsigned document."

5. Mrs Wolffe, Advocate, for the First Party, and Mr Primrose, Advocate, for the Second Parties, were both content, as are we, that the immediately relevant law is correctly set out in the foregoing excerpts from Lord Johnston's Opinion. What remains, therefore, is to apply that law to the particular facts of the present case. Before, however, we come to that, there is one further authority which should be mentioned, namely Stenhouse v. Stenhouse 1922 S.C. 370. That was a case, again with similarities to the present, in which there was found within the repositories of the deceased a closed envelope with, written on it, the words "Will and Testimony off Joseph Stenhouse for Mr Sturrock, S.S.C. Dalkeith." Inside the envelope there was found, as in the present case, a holograph but unsubscribed testamentary writing on a single sheet of paper. The decision of the First Division was that the document in question was invalid as a testamentary writing. However, that decision was reached on the short ground that what was written on the envelope was merely a "descriptive doquet" and thus fell far short of constituting a "subscribed adoptive writing." It does not seem to have been doubted that, if the writing on the envelope had been appropriate for the purpose, it could have had the effect of adopting the contents as a valid Will.
6. Turning, now, to the facts of the present case, we are of opinion, in agreement with the submissions of Mrs Wolffe, that the words "My Will" followed by one form of the deceased's signature comprise both a subscription and a writing habile to adopt the contents as being the Will of the deceased. The use of the signature evinces the necessary finality of intention and the words "My Will" are clearly adoptive in character. In these respects the present case is immediately distinguishable from, on the one hand, Taylor's Executries v. Thom and, on the other hand, Stenhouse v. Stenhouse.
7. We have, however, encountered rather more difficulty in deciding whether it can be said that the envelope is linked "unequivocally" with the contents, to borrow from the phraseology employed by Lord Johnston in Taylor's Executrices v. Thom. Mr Primrose, for the second parties, urged us to hold that this test was simply not satisfied. He pointed out that the contents of the envelope might have been changed over time. We do see the force of this submission and there can be no question but that the case would have been that much stronger for the First Party if the envelope had been sealed. Nonetheless, we are, on balance, of opinion that, even in the absence of sealing, the test is satisfied. Granted that the deceased would have recognised the adoptive force of what was written on the envelope, it is, we think, inconceivable that she should leave within it a testamentary writing other than one to which she intended effect to be given.
8. In the result we answer the Question of Law posed in the Case in the affirmative.