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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Horne & Anor v.Whyte & Ors [2005] ScotCS CSOH_115 (23 August 2005)
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Cite as: [2005] CSOH 115, [2005] ScotCS CSOH_115
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Horne & Anor v.Whyte & Ors [2005] ScotCS CSOH_115 (23 August 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 115 |
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A1794/00
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OPINION OF LADY SMITH in the cause MRS JOYCE HEATHER HORNE and ANOTHER Pursuers; against MRS GAIL MIRIAM WHYTE and OTHERS Defenders:
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Pursuers: Clark, Advocate; Burness
Defenders: MacDonald, Solicitor Advocate; Balfour & Manson (for Stronachs, Advocates, Aberdeen)
23 August 2005
Introduction:
[1] The late Lieutenant Colonel Gordon Bryson Kynoch ("the deceased") died on 6 July 1998, aged 94, leaving a will, a codicil and an informal writing. The codicil was largely to the benefit of Gail Miriam Whyte, the first defender, who had been his housekeeper. No appearance having been entered on behalf of the other defenders, I will refer to the first defender as "the defender". [2] In this action, the pursuers, who are a son and daughter of the deceased, seek reduction of the codicil. They also sought reduction of the informal writing but since, at the end of the proof, it was intimated on behalf of the defender that she no longer laid any claim to the items referred to in the informal writings, the only issue that requires to be determined is that of whether or not the codicil should be reduced. The grounds upon which reduction was sought are that the codicil was impetrated by the defender by fraud and circumvention when the deceased was weak and facile and that, separately, it was impetrated by her by undue influence, the deceased having reposed trust and confidence in her. The case came before me for proof. [3] The deceased was a widower, his wife having died in July 1996. He had five children, namely his two sons George (the second pursuer) and Bruce, the latter of whom died on active service in Cyprus in 1956, and his three daughters, Patricia, Joyce and Fiona. He made a will dated 2 May 1997, number 6/1 of process which provided for members of his family and for the defender. He signed the codicil, number 7/3 of process, which is the subject of this action, on 19 June 1998, seventeen days prior to his death.The Will:
[4] The terms of the deceased's will (6/1 of process) included the following provisions:"(FIVE) (a) Considering that I have made a gift to Mrs Gail Miriam Whyte of let agricultural ground at Milton Lands Keith, I direct my Executors to pay the said Mrs Gail Miriam Whyte a sum equivalent to the amount of any inheritance tax (or any replacement therefor, as to which my executors shall be the sole judges) chargeable on that gift as a result of my death;
(b) I direct my Executors to make over to the said Mrs Gail Miriam Whyte any motor car belonging to me at the time of my death with the vehicle registration number RSA 70, together with the sum of Three Thousand Pounds, and any fax machine which I own at the time of my death;
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(SEVEN) I direct my Executors to divide the sum of Five Thousand Pounds equally among or between those staff who are in my employment as at the date of my death or provide services of such a nature to me, albeit being self employed, and have been in such employment or provided such services for a continuous period of three years before my said date of death (as to all of which my Executors shall be the sole judges)............".
The Codicil:
[6] The codicil comprises a preamble and the following provisions:"(ONE) With reference to purpose (SEVEN) of my Will I amend the period of three years to a period of six years:
(TWO) I direct my Executors to make payment of a legacy of TWO THOUSAND POUNDS (£2,000) STERLING free of all government duties and taxes but without interest equally among the children of my daughter, MRS FIONA LYON KENNELLY;
(THREE) With reference to Purpose (FIVE) of my Will I increase the legacy to the said MRS GAIL MIRIAM WHYTE to FIFTY THOUSAND POUNDS (£50,000) STERLING; and except in so far as amended by this Codicil I confirm my Will in all respects :...".
The Deceased's Health:
[8] As at 8 December 1995, when the deceased was 91 years old and his late wife was still alive, his state of health was summarised by his General Practitioner in the following manner:"Colonel Kynoch has had angina for many years, which is mostly precipitated by anxiety. He is almost blind because of macular degeneration. His drug therapy consists of 80mgs per day of Propranolol in the form of Hald Inderal LA and 30mgs of Aspirin and 1 Co-amilofruse tablet per day.
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The couple are extremely heavily dependant on almost continuous supervision to cope with even the most minor of decisions , and looking after them at home gets rather fraught....." ( 6/169 p.31)
The Deceased's Dependency on the Defender:
[17] The extent to which the deceased became dependent on and was influenced by the defender was a central theme in the case. The defender would not accept that she was anything more than his housekeeper, denied that he had become heavily reliant on her and sought to present a picture of the relationship between them being a matter of her simply doing as the deceased required. There was, however, a wealth of credible and reliable evidence to the contrary. [18] As background, it was agreed that the defender had started working for the deceased and Mrs Kynoch at about the end of 1989. Initially her duties were to act as a driver for them but her role steadily increased. She began working for them on a part time basis, five days each week, she became the key holder for their alarm, took the deceased's car home at night and had private use of it, shopped and became responsible for organising a team of carers and cleaning help for the period both before and after Mrs Kynoch's death. Latterly, the deceased required full time care both day and night. She organised the rotas, became involved with the paying of the carers' wages, carrying out the deceased's banking, checking the deceased's mail both incoming and outgoing and assisting him generally with paperwork matters. By 1998, the deceased had started referring to her as his "P.A". [19] Lady Patricia Wordie, one of the deceased's daughters, impressed as an honest and straightforward witness who was clearly upset at what she saw as her father having been taken advantage of by the defender. She observed the defender's role increasing as the years went by to the extent that both her parents became very dependent on her, although her mother was apt to be uncomplimentary about her. She spoke of the defender being rather cross at not being allowed to join a family meeting in January 1996, of finding that everything she said to her father was relayed to the defender, and him being wholly dependent on her. She cited as examples an occasion shortly after her mother's death when she and her sister wanted to go through their mother's clothes but were told by the deceased that he would have to get the defender's permission first and of it becoming difficult to visit her father; for instance, when she was visiting from her home in the south of England, in June 1998, and wanted to visit the house to say goodbye, her father told her it was not convenient, she getting the impression that his refusal was at the defender's behest. [20] The first pursuer, one of the deceased's other daughters, was also an honest and straightforward witness who gave evidence that the defender got closer and closer to her father, particularly after her mother's death, when the deceased was lonely and had a need to tag on to somebody. He got very dependent on her and was frightened that she would leave, a theme that also ran through other witnesses' evidence. She got the impression that her father would not do anything without the defender's permission and if the defender was present when she telephoned him, she was liable to be told to mind her own business if she made any suggestions to him. Conversely, if she phoned on a Sunday, when the defender was always absent, he was much more natural and better to talk to. In the same vein, she found that if she wanted to visit, the deceased would say "of course, but you'll have to consult Gail". [21] Michael Kynoch, the deceased's grandson, recalled that the defender's role increased greatly after his grandmother's death and he would look to her to make decisions for him. He spoke of having offered to cut the deceased's hedges during one summer university vacation, as he had appropriate gardening experience as a result of having worked for the local council's parks department, but his offer was declined and a relative of the defender's carried out the job , for payment. He would not, he said, have charged his own grandfather for doing the job. [22] The second pursuer, the deceased's son was a forthright witness who gave credible evidence regarding events of which he had a recollection and was careful to indicate when he did not have an accurate recollection. He was adamant that it was fair to draw the conclusion that his father had been taken advantage of by the defender. He evidently did not have a good relationship with the defender but he was open in accepting that that was the case. He felt that she resented him trying to take responsibility, as he did from time to time, being the deceased's only surviving son and also being the only child who lived locally. Her attitude angered him at times and he clearly felt that she did not act in his father's best interests, particularly when it came to his relationship with his family. He got the impression that she worked at "keeping old fires burning" as regarded old family disputes. This was an impression gained from matters such as when the defender was around, his father's letters regurgitated accounts of old grievances. On the other hand, letters written on Sundays, when the defender was absent, were quite different and did not do so. It emerged from Yvonne Coull's evidence that she would often go in on Sundays when the defender was not present and the deceased would be writing letters to his family which she would post for him, the deceased telling her that the defender was not to find out that he had done so. Similarly, family telephone calls which took place on Sundays had to be kept a secret from the defender. Yvonne Coull got the impression that the defender resented the deceased's family and it rubbed off on him. The picture of the defender influencing the deceased against his family was further supported by Victoria Large, who observed her being openly hostile to Lady Patricia Wordie and of the deceased being afraid of saying something to her that he should not, in the sense of it being something that the defender would not approve of, when she was visiting on one occasion. Nancy Cruickshank, another carer, gave evidence which I accepted, to similar effect in that she recalled that the family were only allowed to visit if the defender agreed to it and that whilst, if the defender was absent, he was "just the Dad" with his daughters, if she was present he got angry with them. [23] The second pursuer was, understandably, very worried when he discovered that his father was planning to move house in 1997 and was clearly critical of the defender either for having instigated it or for failing to put a stop to the idea. He spoke of the occasion when the deceased collapsed in June 1996 and his anger at the fact that it took the defender some six hours to telephone him to advise that his father was in hospital. He also spoke of his concern at the fact that, as happened on a few occasions, the defender's fifteen year old daughter was employed to act as his father's carer which he thought was not appropriate. This was something which was also touched on by Victoria Large, who recorded in a notebook (6/161) that the deceased was concerned about it also. He recalled his mother referring to the defender as "Bloody Gail" although she was a woman who did not normally swear. [24] Victoria Large kept the notebook, 6/161 of process, for the express purpose of noting down concerns she had about the defender's involvement with the deceased. She explained that it was a personal way of unburdening herself which she resorted to out of a sense of frustration and she would write notes after she had settled the deceased down for the night. She did so in circumstances where she got closer to the deceased the longer that she worked for him and there were times when they sat together and he "just opened up." She felt that there was something wrong going on. The notebook contains numerous examples of concerns at the extent to which the defender was influencing the deceased. She recorded the view that the deceased had an unhealthy reliance on the defender, that he was almost obsessed, that he was convinced he could not function without her and, repeatedly, that the deceased was afraid that she would leave him. Indeed, there was evidence from another carer, Nancy Cruickshank, which was accepted by the defender, that there was an occasion when she told the deceased that she would leave if he did not stop his nonsense, the "nonsense" in question being that he had been upset and impossible to handle during a period of a few days when the defender was off. Victoria Large presented a clear picture both in her oral evidence and through her notebook of the deceased being terrified of upsetting the defender and of being obsessed with the need to keep her happy. He would get agitated if concerned that the defender might be upset and in her own experience and drawing on what she heard from other carers, when that happened, it was very difficult to get him to settle down for the night. He had it in his head, she explained, that everything had to be approved by the defender. [25] She gave examples showing the extent of the defender's influence over the deceased which concerned her. One was the shopping practices to which reference is made in the next section of this opinion. Another was that when it was the defender's birthday, rather than buy her flowers, as Victoria Large suggested, he bought her a pine desk because that was what she wanted, saying "Well - she is happy." Another was that the deceased bought a new fax machine because the defender told him that the model he had was outdated. Another was that the defender wanted a briefcase so he bought her one. Another was that the defender indicated that she would like a painting for her 25th wedding anniversary so the deceased set about finding a local artist who would assist. Another was that when Lady Patricia Wordie offered to take her father to the USA to visit her sister there and he had told the defender that he could visit the USA with his daughter, her reaction was "that won't do - no." He had been anxious to tell the defender of the offer himself and quite frightened of the prospect of the defender getting to hear about it without him having done so. Another was that the deceased was so fixated on the defender having to see all his post that he became frantic when a Bettaware catalogue had been returned to the man who had called to collect it, the cause of his reaction being that the defender had not seen it. Another was that Victoria Large would sometimes get a call from the defender telling her to have the deceased ready dressed in jacket and tie looking presentable because they were going to Aberdeen; according to what the deceased told her, they did so because the defender needed things there, not him. The defender sought to counter this in her evidence by explaining that they went to Aberdeen for the deceased to see his solicitor there and he did not want anyone to know that he was doing so. That was not, however, an account that was supported by Mr Flett, his Aberdeen solicitor, since he gave evidence that the deceased never visited him in Aberdeen. [26] A matter of particular concern was that the deceased reported to her that the defender had said that he needed a new car because his existing car would get expensive to repair. This was in 1998, shortly before his death. A new car was, accordingly, bought notwithstanding the fact of his age and state of health, that his existing car was only three years old, had passed its MOT test and was one which had some sentimental value for the deceased as he and his late wife had enjoyed being taken out in it together. The defender arranged for two new cars to be brought to the house for the deceased to select a car, which he did. The car was delivered on the Friday before the deceased's death, to the defender's house. She drove it to the Game Fair at Scone on the Sunday and to the deceased's house on the Monday, the day he died, where he sat in it whilst it was parked outside. He was never driven in it. As regards the purchase of the car, Victoria Large had the impression that the deceased was uninterested and as regards its colour, he said that it was up to the defender: "I must keep her happy or she'll leave me." Victoria Large recalled getting the impression that the deceased did not have sufficient money in the bank to pay for the car and spoke of financing its purchase by selling shares. Grant Munro confirmed in his evidence that he did so, which was not surprising given that the deceased had, as is seen in his bank statements, been transferring substantial sums from deposit into his current account over the course of the period covered by the bank statements lodged, to keep that account in credit . [27] Significantly, Victoria Large's evidence included her recollection and notes regarding the deceased at the time the codicil was made. She recalled that he was not long out of hospital and very frail at the time. When she went in one evening he was extremely agitated and "high" in the sense that she got from him a feeling of overriding total reliance on the defender for his life. He was not elated. He could not settle. She made him tea and chatted to him to try to settle him down. He kept saying to her: "It's all sorted, it's all sorted. No - one has to worry now." He told her: "I've made a codicil today and Gail's happy now. She told me what to say." She said that the deceased told her twice that the defender told him what to say. He showed her some notes which had been written in a red plastic notebook which had a car on the front and appeared to be in the defender's handwriting which she recognised. The notes, so far as she could recall, included "Gail - £5..." and some noughts. She could not remember how many. Also, there was a note to the effect "Staff - 6 years or more." She was shown 6/273 of process, a red plastic notebook from Doune Motor Museum which had been found in the deceased's home containing some notes on one page in the defender's handwriting (as was accepted by the defender) which were in the following terms:"£2,000 amongst American Children
6 years for staff
Power of Attorney
land given over to Gail"
On the reverse of that page was written: " 30,000".
[28] Victoria Large recognised the writing on 6/273 as the defender's but was not sure whether it was the same as the note that she had seen at the time the deceased told her about the codicil. [29] The deceased talked further, she said, cataloguing what the defender had got, namely that she had the land, he'd bought the house and she would get the money. He kept saying "Gail's happy" and Victoria Large said that she had her hands full with him that night. She was very unhappy about what the defender had recounted and said that her conscience told her that it was not right. [30] I should add, regarding Victoria Large's evidence regarding what she was told by the deceased, that the defender herself gave evidence that the deceased was a truthful person and did not tell lies. Her way of dealing with Victoria Large's evidence was to say that she was not telling the truth but, as I have already indicated, I found Victoria Large to be an impressive witness and accepted her evidence. She had no reason to lie. She had no reason to make the entries in her notebook that were made other than that, as the responsible professional person that she appeared to be, she was genuinely concerned about what was happening. [31] Yvonne Coull also spoke of being concerned about the extent of the defender's dominance over the deceased and his need to get permission from her for everything. His opinions were, she said, the defender's opinions. She cited an occasion when she, having discovered that the deceased had not been to visit his late wife's grave and wished very much to do so, offered to take him when she was next working at which he was "over the moon". His response had been, however, that he would have to check with the defender and the following Sunday, when she arrived at work, he would not agree to be taken by her and would not say why. She clearly drew the inference that the defender had put a stop to the plan. Linda Burgess spoke of his relationship with the defender being an obsession. Both she and Victoria Large were critical of her attitude to the deceased. Victoria Large spoke of her lacking compassion and of being concerned that she found him, one day, having been left to wait in the car whilst the defender was at the hairdressers and that he told her that on another occasion he had to wait for a lengthy period on a chair in Boots the chemists, while the defender and her daughter were shopping. Linda Burgess described the defender as behaving unlike an employee and being abrupt with the deceased, something which was also observed by Nancy Cruickshank. Nancy Cruickshank also spoke of the deceased being completely dependent on the defender, of being afraid that she would leave and of requiring her permission to do anything. [32] Dr William Morrison, who was called as a witness for the defender, recalled that the deceased was very dependent on the defender, thought that he consulted with her before making decisions and that latterly, he consulted her about just about everything, even trivial day to day decisions. By the latter stages of his life he had, Dr Morrison said, become frailer and more indecisive. He recalled an occasion of her saying to him words to the effect "don't be silly - do this, do that.....". He said he was sure that if the defender had threatened to resign it would have caused the deceased anxiety and panic and could have pressured him into leaving things to her in his will. He thought that the deceased could easily have been influenced by the defender. [33] William Johnston was the deceased's local solicitor and gave evidence for the defender. He recalled the defender becoming the deceased's constant companion. She would accompany him to and be present during meetings at his office. The deceased's hearing and sight were bad and she would, as he put it "clarify things for him". He was saddened to see the deceased so dependent on someone physically. [34] The defender sought to present a different picture, of an employer/employee relationship in which she did as she was told. Whilst that picture was one which, as a matter of generality, was supported by the evidence of another carer, Janette Young, she repeatedly indicated that she could not remember details and, being someone who had known the defender for fifteen years as a neighbour, seemed inclined to support her. John Sievewright, a man who had known the deceased through the Gordon Highlanders and the British Legion gave general evidence that the deceased regarded the defender as an employee but he, similarly, had little to offer by way of detailed recollection and since he was stationed in Edinburgh between 1995 and 1998, his opportunities for contact with the deceased would have been limited to visits to his family in Keith. He had no specific recollection which he related to anything happening in 1998. [35] The weight and quality of the evidence of dependency that was contrary to the picture that the defender sought to present was such that I have no hesitation in drawing the conclusion that the deceased was heavily dependent on the deceased for a considerable time prior to his death and, in particular, at the time that the codicil was made. That dependency clearly extended to all aspects of the deceased's life from the securing of adequate and appropriate arrangements for his physical care to financial matters. It seems that his whole sense of security and wellbeing was dependent on her and that her influence over him was such as to have disabled him from making any decisions, however, trivial, without first referring the matter to her. The conclusion that she controlled the deceased is irresistible. Further, I accept that a feature of that dependency was marked anxiety on the part of the deceased that the defender might leave his employment and a persistent feeling that he needed to ensure that she was happy which, simply put, meant that he required to do what she wanted, even if imprudent, such as buying a new car when his health was failing, his finances had already been depleted and he did not need one. This was also carried out in circumstances where the car was free for the defender to use for her own purposes when not working for the deceased. Further, significantly, it was in circumstances where, to the knowledge of the defender, as she conceded, the deceased's will contained a legacy in her favour of whatever car the deceased owned at the time of his death and there was no evidence from any witness, including the defender, that she made any real effort, to dissuade him from this course of action. Linda Burgess gave clear evidence that the deceased was somewhat upset about the purchase of the new car but said that he had to buy the new car or else the defender would leave him. I infer, in all these circumstances, that the purchase of the new car occurred at the behest of the defender.Financial benefit to the defender from the deceased prior to his death:
[36] The defender gained financial benefit from the deceased, over and above her regular wages (£45.20 per week in 1997 and rising to £50.20 per week by the time of the death of the deceased), in various ways. By May 1994, the deceased had made a will leaving one sixth of his estate to the defender in the event of his wife predeceasing him. In December 1994, he gifted 40.14 acres of land at Milton to her, the defender's explanation for his doing so being that the deceased had wanted to give some land to her so that she would have an income for the rest of her days, in recognition of the fact that she was not, she said, paid as much as the carers. In a letter to his children dated 9 December 1995 (7/4 p.6), when his wife was still alive, the deceased reported the following:"Our problem has been how we can reward Gail for all that she does for us and is doing for us without overloading our weekly financial expenditure.
.............................
The total sum of money amounts to £21,000 and this has been arranged to be paid as follows.
In order that Gail and her husband are able to buy their house in Mosstodloch by a mortgage system we have already contributed £9,000 and there is still £12,000 to pay. We are at present using the annual allowances during the lifetime of ourselves and in the event of our death, that the payments may be continued until the scheme is complete we are arranging to deposit the whole balance of £12,000 in our account with Messrs Stephen and Robb which will be held by them as a fund out of which the payments can be made over the next two years after 5 April 1996."
The Making of the Codicil:
[46] The codicil was prepared by the deceased's solicitor, Erlend Flett. The background to his receipt of instructions was that the deceased had written to him by letter dated 2 June 1998 (7/4 p.75) indicating that he felt his will might be a little out of date. The deceased was admitted to hospital having collapsed, on 8 June and discharged on 10 June on which date the letter of 2 June was faxed to Mr Flett. Mr Flett replied by letter dated 11 June 1998, indicating that he did not think that there was any need to change the will unless the deceased had some specific changes in mind (7/4 p.75). What then followed is that instructions were given to Mr Flett in the course of a telephone call, on 15 June 1998, in circumstances which were largely undisputed. As regards the relevance of the note on 6/273 of process, it seems to me that it is highly likely that it does relate to the telephone call on 15 June to Mr Flett. The figure for the legacy to the American grandchildren is reflected in the codicil as is the change to six years qualification for the staff legacy. As regards the figure of 30,000, whilst it is less than the ultimate legacy in favour of the defender, it is of similar order and, as is explained below, there was discussion as to what would be the appropriate figure. It seems, accordingly, that prior to the telephone call, there must have been discussion between the deceased and the defender regarding what instructions were to be given to Mr Flett. That would also accord with Victoria Large's evidence that the deceased said that the defender had told him what to say. Mr Flett's file note for the conversation (7/4 p.74) begins:"Attendance on telephone with Colonel Kynoch and Mrs Whyte.....Colonel Kynoch, who spoke himself indicated that there were certain changes required to his Will...".
The defender was present throughout the call, which was made from the sitting room of the deceased's home. The telephone was switched to loudspeaker. The door to the lounge was closed during the call. Nancy Cruickshank, one of the deceased's carers, was in the kitchen during the call. She recalled, in evidence which was not seriously disputed and which I accept, that, during the call, the defender came into the kitchen and asked her how long she had been in the deceased's employment to which she replied that it was a period of four years. I also accept evidence given by Nancy Cruickshank that she felt that there was something strange going on when the lounge door was closed for the telephone call and that, on leaving the kitchen after checking the length of Nancy Cruickshank's employment, the defender closed the kitchen door also, which angered her. There had been discussion between Nancy Cruickshank and the deceased regarding him proposing to make changes to his will during the previous evening. She discovered that he was planning to leave his house, Skara Brae, to her, which upset Nancy Cruickshank; she appeared to consider that that would be wholly inappropriate. She explained in evidence that was not challenged that she contacted the defender that night to tell her that she could not let the deceased do so, to which the defender responded that it was "alright" and she would "sort it".
[47] So far as the instructions for the codicil were concerned, Mr Flett explained that telephone was his principal mode of communication with the deceased. He had met him only once, in April 1997, when he took instructions for the original will. He had no actual recollection of the telephone call of 15 June 1998 and was dependent on his file note for his evidence. As regards the changes reflected in the first two paragraphs of the codicil, these are set out in the file note. It also records that the deceased wished to make an additional bequest to the defender as she had been very good to him and his late wife, that the deceased initially mentioned making over his house, Skara Brae, to her but that the defender was not enthusiastic about that "and could foresee trouble with the family if this were done" indicating that the defender clearly participated in the discussion. Mr Flett said that he advised the deceased that he should consider a cash legacy instead and that the deceased said that it would have to be substantial. Mr Flett's recollection was that he then asked him what he meant by that - was it to be £25,000, £50,000 or some other figure? The deceased then said it was to be £50,000 and Mr Flett proceeded to draft the codicil on that basis. [48] The defender said in evidence that she was not enthusiastic about the defender leaving Skara Brae to her and that she wanted his solicitor to stop him from doing so. In response to the suggestion, in cross examination, that she was happy to take the money instead, she said that that was nothing to do with her; it was Mr Flett's suggestion and he had first suggested £25,000 to which the deceased's response was to "double it". Whatever the accurate characterisation of the way in which the decision to leave a cash legacy of £50,000 was arrived at, it is clear that the defender, at no time in the course of that telephone call, indicated that she did not want to receive a legacy of the house or a cash legacy nor did she seek to persuade the deceased to refrain from instructing his solicitor that she should receive one. [49] Mr Flett did not meet with the deceased at all in connection with the preparation of the codicil. He drafted it and sent it to the deceased for signature under cover of a letter dated 16 June 1998 (7/4 p.73). I accept the evidence to the effect that the deceased had the defender read all his mail for him, which is not surprising given the deficiencies in his own eyesight. That means that the letter would, in the usual way, have been read by the defender. It suggested to the deceased that he have his doctor witness the will as that "would be of great help in preventing any difficulties arising if the Will were to be challenged in the future." [50] The codicil was witnessed by Dr Morrison who called on the deceased on 19 June 1998 by way of a routine visit. The defender was present. The deceased had recently been discharged from hospital and Dr Morrison's impression of his condition was as I have recorded it in the section of this opinion dealing with the deceased's health. Dr Morrison recalled that the deceased told him that his solicitor had advised him that he should tell him the contents of the codicil and that he should ask him to read it to confirm that that was what the codicil said. The deceased told him that the purpose of the codicil was to give £50,000 to the defender. He gave no reason. Dr Morrison read the codicil for himself and noted that it did seem to provide for such a legacy. He did not read it over to the deceased. In particular, he made no mention in evidence of the deceased or he being aware of the other provisions of the codicil. Dr Morrison did not seem to feel it appropriate to become involved in or interest himself in what was occurring and there was no suggestion that he had made any enquiry as to how it was that the deceased's decision to effect the codicil had come about. He said that he did consider whether or not the deceased had testamentary capacity at the time and thought that he had in that he knew what making a codicil meant, he knew what he could leave by way of testamentary disposition, he knew to whom estate would normally be left and he was not in an abnormal state of mind. His considerations were, however, limited to those relevant to testamentary capacity.Facility and Circumvention:
[51] For the pursuers to succeed under this head, it is necessary that they establish (1) the facility of the deceased at the time the codicil was made; (2) acts of circumvention or fraud which impetrated or procured the codicil; and (3) lesion. Direct evidence is normally required for the first and third of these elements but the second, for obvious reasons, is usually, where the granter of the challenged deed is dead, a matter of inference (see: Clunie v Stirling (1854) 17D 15; Mackay v Campbell 1967 SC (HL) 53; Pascoe - Watson v Brock's Executor 1998 SLT 40; Gaul v Deerey & Others 2000 SCLR 407). The three elements are clearly interrelated, they require to be looked at as a whole and the strength of a pursuer's case on one matter may compensate for weakness on other matters (Mackay v Campbell; Pascoe- Watson v Brock's Executor). [52] I am, however, satisfied that the pursuers' case is a strong one under all three heads. I have no doubt, from the evidence regarding the deceased's state of health and the nature and extent of his dependency on the defender that he was in a state of considerable facility at the time that the codicil was made, a state in which he would have been particularly vulnerable to any degree of pressure or persuasion by the defender. His desire to please her, borne, it seems, of a real fear that she might leave his employment, appears to have been all consuming and I conclude that it would have taken very little on her part to persuade him to act in her favour whether by way of direct or indirect suggestion . [53] As regards the matter of circumvention, I have no difficulty, in all the circumstances, in drawing the inference that circumvention occurred. It is not simply a matter of the extent to which the deceased was dependent on the defender but there is much evidence, to which I have already referred, of prior instances of the deceased conferring benefit on the defender so as to keep her happy, in response to an indication on her part, that the particular benefit was something that she wanted, whether a briefcase, a pine desk or a car. There is no question of the deceased having been advised regarding the codicil and its implications regarding his entire estate and his family, in the absence of the defender. Indeed, it is somewhat surprising that Mr Flett made no effort to do so, particularly where his file note seems to indicate some degree of concern as to what was happening, as does the reference in his letter of 16 June to the advisability of the deceased having his doctor witness the codicil so as to protect against future challenge. Rather, the defender was present and participated in the telephone call when instructions for the preparation of the codicil were given and was present when Dr Morrison witnessed the deceased's signature yet never indicated to Mr Flett or Dr Morrison any reluctance to accept the legacy in her favour. Such an approach on her part is consistent with the background to the instructions being that she had told the deceased what to say and that that included a substantial benefit to her. The evidence to the effect that the defender sought to come between the deceased and his family, the other obvious recipients of his estate at his death, also supports the drawing of an inference of circumvention. [54] I have given careful consideration to the question of whether the drawing of that inference is displaced by the defender's own evidence that she did not seek to play on the deceased's weaknesses. I did not, however, find her to be a credible witness. She was apt to avoid pertinent questions by giving irrelevant answers or saying that she had no recollection. Her failure to accept that she was in a position of influence regarding the deceased was wholly incredible given the weight of evidence to the contrary. Her position regarding the deceased's correspondence, namely that she only saw a few letters, was wholly unconvincing given the level of her involvement in his affairs, his extremely poor eyesight and the clear evidence to the contrary from Victoria Large, Yvonne Coull and Nancy Cruickshank, the latter recalling that she would see the defender and the deceased going into his study (known as "the doghouse") to discuss his incoming mail. Her explanation of the deceased referring to her as his "P.A" being only a joke is undermined by her own use of the expression in conjunction with her own signature on the letter in 6/274 of process. Her denial of having made an enquiry of Nancy Cruickshank, at the time of the telephone call instructing the codicil , as to how long she had been in the deceased's employment conflicted directly with Nancy Cruickshank's clear and credible evidence on the matter. Her account of the reason for trips to Aberdeen was directly contradicted by Mr Flett's evidence. I take account also of the defender's position regarding the manuscript notes on 6/273 of process. It is entirely unsatisfactory and indicative of a lack of candour on her part that until very shortly prior to proof she not only offered no explanation as to the provenance or meaning of the note but did not even admit that it was in her handwriting. Her evidence that the deceased remained mentally "sharp as a tack" until the end of his life was not supported by the medical and other evidence regarding his mental frailty to which I have already referred. Her inability to explain why the regular substantial cash withdrawals were being made from the defender's bank account and where the money was going, was wholly unsatisfactory and leads me to conclude, as I have explained, that she was, in some way, gaining benefit. Her credibility is called into question on account of this matter alone. [55] Separately, that the defender was prepared to mislead and take advantage of the deceased was clear from her evidence that she had not used the annual payments given to her by him for the purpose of reducing her mortgage, to pay off her mortgage at all. There was no indication that she had even thought of telling him, which could reasonably have been expected in the circumstances. [56] Moving on to the evidence regarding the informal writing, 6/2 of process, I also found the defender's evidence regarding it to be unsatisfactory. The evidence from the family was clear that the deceased had much moveable property that was not specifically mentioned in the document, particularly family heirlooms. On one reading of the document, any such property was to be bequeathed to the defender: the second paragraph of the document, which precedes the references to specific items being for members of the family, begins: "Mrs Whyte, my housekeeper, has to get the contents of my home to sell or keep for her own use...." and the document ends with a reference to the defender having a discretion as to what is to happen to any property not mentioned. The defender's attempt to play this down by saying, as in evidence she did, that all she took was that there would be a few things that the family did not want and it would be alright for her to have such items or sell them was disingenuous. She seems to have given no thought as to whether it was appropriate for her to be involved in the creation of the document at all when she was to be a beneficiary; on the contrary, she seemed quite comfortable with doing so. Further, she denied having told the deceased's executors, after his death, that she wanted a grandfather clock, the dining room table and a Davenport desk from the house, yet it was evident from the terms of the relevant solicitors' correspondence that she must have done so. She attempted to backtrack on that evidence in an unconvincing manner. [57] There was a lack of any satisfactory explanation for so much family property not being bequeathed to family members in the document. There was an oddity regarding the fact that the document bore to bequeath a painting of Trinity College, Glenalmond to the deceased's great grandson in the USA when, on a later date, according to evidence that was not challenged, the deceased had told his grandson Michael, that he was to inherit it as he had been a pupil at the school. [58] The terminology of the document is also a matter for concern. The defender was insistent that it contained the deceased's words and that as far as she was aware, it was written by him, albeit typed by her daughter. The document contains, however, basic grammatical errors and spelling mistakes of a type that it is impossible to believe the deceased would have made. Many of his handwritten letters and prior manuscript testamentary writings were produced and it is evident that his grammar and spelling were those of an educated man. They do not contain errors of the type that appear in 6/2 of process and in the case of those in which he sought to express testamentary intention, it is evident that he was apt to use appropriately formal language. William Johnstone been one of the deceased's executors and he indicated that the executors had some unease about the document, which is hardly surprising in the circumstances. [59] In all the foregoing circumstances, I am satisfied that the codicil was the result of the exercise by the defender of her considerable power and influence over the deceased at a time when he was plainly in a state of facility. Lesion clearly arises, given the nature and content of the document that is challenged.Undue Influence:
[60] It was submitted on behalf of the pursuers that the codicil fell to be reduced in any event on the grounds of undue influence. Historically the ground is a distinct one although, as commented in the case of McKechnie v McKechnie's Trs 1908 SC 93 @ p.98:"....if there is anything of the nature of weakness or facility in such cases, the weakness or facility will make it much more easy to hold that person acted under undue influence."
"The circumstances which establish a case of undue influence are, in the first place, the existence of a relation between the granter and grantee of the deed which creates a dominant or ascendant influence, the fact that confidence and trust arose from that relation, the fact that a material and gratuitous benefit was given to the prejudice of the granter, and the circumstance that the granter entered into the transaction without the benefit of independent advice or assistance. In such circumstances the Court is warranted in holding that undue influence has been exercised; but cases will often occur....in which over and above all this , and beyond what I hold to be necessary, it is proved that pressure was actually used, and that the granter of the deed was in ignorance of facts, the knowledge of which was material with reference to the acts he performed."
"The conduct of a person in vigorous health towards one feeble in body, even though not unsound in mind, may be such as to excite terror and make him execute as his will an instrument which, if he had been free from such influence, he would not have executed. Imaginary terrors may have been created sufficient to deprive him of free agency. A will thus made may possibly be described as obtained by coercion."
which comments call to mind the evidence in this case regarding the deceased's oft repeated fear of the defender leaving his employment.
[65] It was submitted on behalf of the defender that the case of undue influence was not made out because the deceased had had the benefit of Mr Flett's advice when the codicil was made. I cannot accept that his telephone discussion with Mr Flett amounted to the proper tendering to him of separate and independent advice given the evidence that the defender was present and she told the deceased what to say. His doctor, who witnessed the document, clearly did not feel it appropriate that he get involved with what it was about. There is no evidence of anyone else giving the deceased proper objective and independent advice. The case falls, in my view, to be regarded as one in which the deceased had no separate and independent advice prior to executing the codicil. [66] That leaves the question of whether, in the circumstances, it is appropriate to draw the inference that undue influence was exerted on the deceased. I have no difficulty in concluding that it was. I draw that inference for the same reasons that I have done so in respect of the pursuers' case under the heading of facility and circumvention.Decision:
[67] In the foregoing circumstances, I shall grant decree reducing the codicil referred to in the second conclusion of the summons.