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Cite as: [2005] ScotCS CSOH_51, [2005] CSOH 51

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Pirie v. The Clydesdale Bank Plc& Ors [2005] ScotCS CSOH_51 (12 April 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 51

A3254/02

OPINION OF LORD WHEATLEY

in the cause

CERIA PIRIE

Pursuer;

against

(FIRST) THE CLYDESDALE BANK PLC, (SECOND) ELIZABETH PIRIE AND (THIRD) CHARLES PIRIE

Defenders:

________________

Pursuer: Party

Defenders: McLean; Solicitor, Ledingham Chalmers, Robertson; Anderson Strathern WS

12 April 2005

[1] In this case the pursuer is the widow of the late James Pirie ("the deceased"), who died on 6 March 2002. The pursuer was married to the deceased on 3 March 1987 at Manila, in the Philippines. The first defender is a company incorporated under the Companies Acts, and is Trustee and Executor under the Trust Disposition and Settlement of the deceased which is dated 24 January 2002, and which is the subject of this action. The second defender is the deceased's daughter, and the third defender is his brother.

[2] The pursuer avers that after the marriage she and the deceased lived together in the matrimonial home of the Old Schoolhouse, Kinellar. During this period the deceased promised the pursuer that she would get the matrimonial home after his death. In the summer of 2001, the deceased was diagnosed with terminal cancer. The pursuer avers that she became his primary carer in the matrimonial home, that the deceased's health deteriorated, that he had problems with his heart and breathing, that he suffered from arthritis and asthma and became confined to his bed. She further says that he became incontinent, did not sleep well at night and suffered from migraine headaches. She states that he became unable to feed, wash or clothe himself without assistance, and that he required an inhaler, medication and strong painkilling drugs. The pursuer also avers that she attended to all of the deceased's needs by changing his bed linen and bedpans, cooking meals and feeding him and washing and dressing him. The second defender, the deceased's daughter, continued to live throughout this period in the Old Schoolhouse as she had apparently done prior to the deceased becoming ill. The third defender, the deceased's brother, is said also to have visited the deceased on a daily basis.

[3] It is agreed that 24 January 2002 the deceased entered into what is described as a Trust Disposition and Settlement in terms of which the first defenders were appointed Trustee and Executor of the deceased's estate after his death. A Mr Copland, an officer of the first defenders, was given the responsibility of acting in this matter for them. The Trust Disposition and Settlement provided that the Old Schoolhouse would be conveyed to the second defender, the deceased's daughter, and the residue of his estate was to be divided equally between or to the survivor of the pursuer and the second defender. The deceased died six weeks later on 6 March 2002. The pursuer avers that the deceased was dying of cancer at the time he entered into the Trust Disposition and Settlement. She specifically avers that his health had deteriorated to such an extent that he was suffering from a facility of mind and was easily imposed upon. She claims that he was unable to appreciate the significance of the effect of the Trust Disposition and Settlement. The pursuer then goes on to aver that, taking advantage of that weakness and facility of mind, the second and third defenders suggested to the deceased that he enter into the Trust Disposition and Settlement. They had, it is claimed, the opportunity to circumvent the will of the deceased by their frequent visits to his bedside in his last months. In these circumstances the pursuer maintains that they induced the deceased to enter into this Trust Disposition and Settlement and that the deed was thus procured from the deceased by the second and third defenders by fraud or circumvention when he was weak and facile. The pursuer accordingly seeks reduction of the testamentary deed.

[4] The pursuer has a second case of undue influence. In particular she avers that the second and third defenders exerted undue influence on the deceased to induce him to enter into the Trust Disposition and Settlement. She argues that as the second defender was the deceased's only child and the third defender was his brother, they were in a semi-fiduciary relationship with him. It is claimed that the illness of the deceased depleted his faculties to the point where he was easily influenced and he relied upon the advice and guidance of the second and third defenders. The pursuer maintains that until six weeks before his death the deceased had been content to allow intestacy provisions (which would have favoured the pursuer) to govern the distribution of his estate on his death. The pursuer avers that he was persuaded to make alternative arrangements in the Trust Disposition and Settlement to the benefit of the second and third defenders. The pursuer therefore alleges that the Trust Disposition and Settlement was procured from the deceased by the second and third defenders by undue influence and should therefore be reduced.

[5] In these circumstances the case came out on procedure roll for debate on the preliminary pleas by the first, second and third defenders. At this debate the pursuer required to represent herself. Having heard her statement, and the response which she made to the submissions by counsel for the defenders, I am satisfied that the pursuer has a reasonable understanding of the legal concepts which were discussed in the course of the debate.

[6] The terms of the two pleas-in-law for the pursuer as they appear on Record are clearly defective. The first plea-in-law is to the effect that the pretended Trust Disposition and Settlement of the deceased, having been procured by the first defender by fraud or circumvention when the deceased was weak and facile and easily imposed upon, should be reduced. The second plea-in-law for the pursuer is that the pretended Trust Disposition and Settlement of the deceased having been procured by the first defender by undue influence on the deceased should again be reduced. On the face of the record therefore there are no pleas-in-law alleging any fault on the part of the second and third defenders. However, it became clear in discussion (although this does not appear in the written note of argument submitted by the pursuer) that the pursuer's case is that Mr Copland, the representative of the first defenders who was allocated the responsibility of acting for the Bank as Trustee and Executor, and the second and third defenders, were all in a conspiracy together in order to deprive the pursuer of her entitlement and rights. In these circumstances I considered that I should read these pleas-in-law as applying to all of the defenders and not, as stated, simply to the first defenders. This was a course which met with the agreement of both counsel for the defenders, which I considered was a concession fairly and properly made by them.

[7] In these circumstances Mr Maclean, counsel for the first defender, submitted that notwithstanding the latitude to be given to the terms of the pleas-in-law for the defenders, there was in the case no allegations of fault of any kind made against the first defender. While the pursuer indicated in her response to his submissions that the first defenders representative, and the second and third defenders, were in a joint collaboration to deprive her of her rights, there is nothing on record which suggested that that was the case. In particular, the grounds specified throughout the record for reduction of the Trust Disposition and Settlement are exclusively concerned with allegations of fraud and circumvention, and the imposition of undue influence, at the instance of the second and third defenders only. There are simply no averments of any kind against the Clydesdale Bank. This is undoubtedly correct. In reply, the pursuer argued, as I indicated earlier, that Mr Copland, the official of the Bank delegated to carry out the work as Trustee, was in some form of conspiracy with the second and third defenders. However, no such allegations are made on record. In these circumstances there are no grounds whatsoever which would justify keeping the first defenders in this action. In the circumstances I shall sustain the second plea-in-law for the first defenders and dismiss the action against them.

[8] Mr Robertson, counsel for the second and third defenders, accepted that his position was more complex. He submitted that the two lines of argument in support of the pursuer's claim that the Trust Disposition and Settlement should be reduced, namely that the testator's will had been overcome by facilitaty and circumvention and secondly that he had been induced to sign the deed by undue influence exercised by the second and third defenders, were neither of them supported by sufficiently specific or relevant averments.

[9] In respect of any claim of facility and circumvention, counsel accepted that it was unlikely that in most cases direct evidence of circumvention of that testator's will would be available. The court therefore might have to look at all of the facts and circumstances in order to see if such an inference could be made; all sorts of things might have to be considered, such as the nature of the transaction, the character of the testator's illness, and so on. Reference was made to the cases of Clunie v Stirling 1854 17D 15 and McKay v Campbell 1967 SC (HL) 53, from which it was plain, counsel argued, that there had to be averments from which the relevant inference of circumvention could be drawn. The question of circumvention might depend upon the degree of facility. In Pascoe & Watson v Brodie's Executor 1998 SLT 40 there were very detailed averments of illness, in stark contrast to the present case, where the averments are more concerned with psychical weakness than facility of mind. The question of facility is in the present case simply an assertion, and there is a complete absence of facts and circumstances from which that facility can be inferred. Further, counsel submitted that there was nothing unusual in the terms of the Trust Disposition and Settlement in itself; the testator has left his home to his only child. The terms of the deed therefore do not in themselves raise a doubt in the mind of a disinterested observer, although they may appear unfortunate to a disappointed beneficiary. In these circumstances, counsel maintained that there was an insufficiency of averments of facility and circumvention.

[10] The second case made by the pursuer was that the second and third defenders had exercised undue influence over the deceased and thus caused him to grant a testamentary disposition where he would not otherwise have done so. In such a case, counsel argued, there has to be a relationship between the parties, where one party to that relationship can influence the other, and seek to benefit thereby. The pursuer has claimed that the second and third defenders were in a semi-fiduciary relationship with the deceased; that, it was said, was simply insufficient. There have to be clear averments about the nature of that relationship, whether personal or professional. In the present case counsel argued that there were no facts and circumstances averred from which any necessary relationship could be discovered. In particular, there was no specific averments or relationship between the testator and the second and third defenders to justify the conclusion that the relationship lead to an improper result. There was therefore no relevant case based on undue influence.

[11] In response Mrs Pirie made a number of statements which were essentially averments of fact, which were not always covered by what is said on record, and which in any event could only be established after a proof. She also made a number of complaints about the behaviour of Mr Copland, the first defender's representative. All of this was clearly irrelevant for present purposes. However, the pursuer repeated her claim, described on record, that the deceased had promised her the house and that he had at no time indicated an intention of giving the house to anyone else. She also emphasised that in the last few weeks of his life Mr Pirie was very ill and had no mental capacity at all. She claimed that her case was unique and that the position was not helpfully illuminated by reference to books. She also made reference to some productions, which appear to suggest that her daughter was also brought from the Philippines at the invitation of her husband in order to live permanently in the matrimonial home with the pursuer. I concluded that she wished the case to go to proof.

[12] I have no difficulty in accepting that the law on these matters was as lucidly described by counsel for the second and third defenders. The cases of Clunie v Stirling and McKay v Campbell clearly demonstrate that either particular and detailed averments of facility, or averments describing plain and unambiguous inference of circumvention, or a mixture of the two, all of sufficient strength, is required in actions of this sort. So the issue in the present case is essentially one of sufficiency and specification of averment. Having considered the parties' submissions, I have come, somewhat reluctantly, to the view that there is sufficient of a case on record, on both aspects of the pursuer's claims, to justify the cause being sent to enquiry. I am reluctant to dismiss the action at this stage when there exists the basic outline of a relevant remedy. Clearly the pursuer's averments are not well focused, and are exiguous in nature; the pursuer will have considerable difficulties at proof because of the defects in her pleadings. However, she avers certain crucial facts which I consider are enough to allow the case to proceed. She maintains that she was brought over to this country from the Philippines by the deceased and that they lived together as man and wife for a number of years thereafter. She makes it clear that throughout the period of his life, until the latter stages, the deceased explained to her that he intended that she should inherit the matrimonial home. She appears to suggest that the testator understood perfectly clearly that that result could be achieved by him simply not leaving a will, and dying intestate. In those circumstances, the pursuer's rights would be guaranteed.

[13] She then goes on to indicate that in the last weeks of his life, the testator was induced to draft a Trust Disposition and Settlement which had the effect of altering that position. This happened a few weeks before he died. At that time he was extremely ill and, the pursuer avers, his mental capacity was seriously impaired. He was visited daily by his brother, who is the third defender, and of course the second defender, the deceased's only child, lived throughout this period in the matrimonial home. The promise that the house would come to the pursuer, followed by a change of mind in the last weeks of a difficult terminal illness, coupled with the complaints of circumvention and undue influence, form the basis of a remedy which can properly be pursued. While I suspect there may be considerable complications arising out of this decision, I feel compelled to conclude in the circumstances that there is the basis of a stateable case against the second and third defenders on record and I must therefore send the matter to enquiry.

[14] As I have indicated, there are clearly difficulties with the pursuer's pleadings, and there appear to be some matters which may well be relevant but are not subject of averment. In these circumstances I shall allow a proof before answer with the second and third defenders' pleas standing.