OUTER HOUSE, COURT OF SESSION   [2007] CSOH 58
A417/04	OPINION OF LADY DORRIAN   in the cause   ARLENE GREENAN   Pursuer;   against   AMANDA COURTNEY AND OTHERS   Defenders:   ­­­­­­­­­­­­­­­­­________________

 

 

Pursuer: Sandison; Morton Fraser

Defenders: Kinroy Q.C.; Doyle & Co

 

 

23 March 2007

 

Background

 

1.[1] In this action the pursuer seeks declarator that the Willwill of the late Richard Greenan, dated 20 March 1989, was impliedly revoked in or around July 1995 by operation of the conditio si testator s cine liberis decesserit and that he according died intestate.

2[2] The pursuer is the widow ofr Richard Christopher Inglis Greenan whom she married on 31 March 1995. She brings this action as guardian of their two children, Caitlin Greenan, born 21 July 1995 and Daniel Greenan, born 7 December 1996. Richard Greenan died on 9 April 2003. Mr GreenanHe had previously been married to the first-named defender, whom he married on 20 July 1984. They were divorced on 17 December 1987 but by that time had reconciled and had resumed cohabitation. The second defender, Courtney Greenan, ("Courtney") was born on 21 April 1989 during this period of reconciliation. Mr Greenan and the first-named defender separated at the end of 1989 or at the beginning of 1990. By the time of the proof Courtney Greenan had withdrawn from the action, being content that decree should be granted. A comparison of how the estate would be divided according to the Willwill and on intestacy can be seen in 6/65 and 6/66 of process.

 

3.[3] The Willwill of 20 March 1989 was executed about a month before the birth of the second-named defenderCourtney. . It appointed the first-named defender as executrix, made no specific bequests, left the residue of his estate to the first-named defender if she survived him by 30 days, failing which to such of her issue and the survivor of them and the issue of pre-deceasing children as shall survive him equally per stirpes. The WillIt made no provision for children of Mr Greenan born other than to the first-named defender.

Pleadings

4.[4] It is averred for the pursuer that the Willwill was impliedly revoked by operation of the conditio sine testator csine liberis decesserit following the birth of Caitlin's Greenan birth in July 1995. The defender alleges that Mr Greenan intended that the Willwill should continue in effect and avers that, following the birth of his children with the pursuer, he was advised, following the birth of his children with the pursuer, by his legal adviserssolicitors, Messrs Snell & Co, to make a new Willwill but declined to do so. It is further averred that in December 1996, after Daniel's birth, Mr Greenan had a telephone conversation with the defender in which he advised that he could not afford to pay maintenance for Courtney but that if anything happened to him (the deceased) the defender was to bear in mind where the Willwill was. It is also averred that Mr Greenan made separate provision for the pursuer by taking out a number of insurance policies and nominating these for her benefit.

The defender makes other averments about the alleged closeness of the relationship between herself and Mr Greenan ritghtright up to his death.

5[5]. The defender had been ordained to lead at the proof. At the outset, of the proof and to prevent the need for making repeated objections during the proof, counsel for the pursuer indicated that it was his position that the only averment which might be relevant to create an inference that the Willwill had not been revoked is the sentence that following the birth of his children with the pursuer he had been advised by his lawyers to make a new Willwill but declined to do so. Counsel's He maintainedposition was that the remaining averments were not relevant to create such an inference and that proof of the averment about the December 1996 telephone call was inadmissible could not competently be admitted since it wasas a verbal declaration of testamentary intent and therefore completely inadmissible. It was agreed between the parties that the evidence should be led subject to reservation of the argument on these issues.

Evidence

6[6] The evidence of the defender was said that she married the deceased when he was 21 and she was 18, having met the week before her 16^th birthday. Her evidence was that theyThey had a very good and close relationship and that he got on very well with her family. However, problems arose between them as a result of the deceased'shis attitude to money and his drinking and . He was then a scaffolder who was paid weekly and appeared to feel entitled, on being paid, to go to the pub and spend his weekly wage. The defender understandably got fed up with this and they parties separated. In evidence she was unclear about the length of the separation, suggesting it was very short. However, during it she commenced divorce proceedings.The defender's evidence about the separate was a little confused. At first she said they separated in 1986 for about a week before reconciling but later said it must have been longer for her to have instituted the divorce proceedings which were never cancelled. It might have been a couple of months. In any event, nNotwithstanding that,e commencement of divorce proceedings, the partiesthey reconciled and began living together again, intiallyinitially. At the time of the divorce the matrimonial home was valued and the deceased bought out the defender. They continued at first to live in the former matrimonial home. but bBy the time Courtney was born they had moved to the a house which the deceased had purchased at 6 Greenend Gardens, having bought out the defender's share of .the matrimonial home on divorce. TheIn the meantime the defender had purchased a flat at 60 Falcon Avenue, which she let out. The house at Greenend Gardens was very close to the addressthat of the defender's parents. The DomoesticDomestic problems over money continued after the birth of Courtney's birth and in consequence the defender and the deceasedthey separated again, this time finally, at the end ofin late 1989 or the start ofearly 1990. She moved to live with her parents.

[

7] The deceased told the defender that he had made a Willwill, because of his off-shore job, told her roughly what was in it and that where it was kept. with his solicitors, Messrs Lindsays. He had made the Will because he had a relatively dangerous job being now a scaffolder who worked off-shore.

8.[8] The defender said that despite the final separation the relationship remained a close and friendly one. He continued to visit during the two years when she lived with her parents and when she moved to Falcon Avenue. The closeness of the relationship, the continuation of the visits and the deceeased's feelings for the pursuer survived his meeting and forming a relationship with the pursuer in 1993; the birth of the defender's child Zachary, to another man, in 1994; the deceased's marriage to the pursuer in 1995; and the birth of Caitlin. During all this there was no change in the deceased's attitude and indeed in 1994, after the birth of Zachary, he had asked the defender for a reconciliation, and in 1995 asked her to remarry him, prior to marrying the pursuer in the March of that year. There were no set times to the visits and the defender thought the deceased was not telling the pursuer about them. She continued to see the deceased until Daniel's birth in 1996 and until he moved to Falkirk in 1997, after which she did not see him again although he continued to telephone about twice a year. He had last called in February  2003, shortly before his death

9.[9] The deceased had not paid maintenance for Courtney despite being asked to do so from 1994 onwards. This upset the defender but did not affect either the relationship or the visits. She simply ceased to mention it and contacted the CSA. On an occasion in about November 1996 she met the deceased and the pursuer, who were with Caitlin and a friend of theirs, Gilmore MacPherson, in Safeways in Morningside. They did not speak. Shortly after this the deceased telephoned her to say hello, simply because they had not spoken in Safeways. This was shortly before the telephone call in November 1996 in which the will was allegedly mentioned. The defender was rather confused about whether there were two or three telephone calls. First she said there was a call after the Safeway incident, but before Daniel's birth, in which the deceased simply called to say hellow. There was another call to tell her of Daniel's birth in which she raised the question of maintenance for Courtney and the will was mentioned. Then she said these were two separate calls. The deceased then called again and this time she asked for maintenance. It was during that call he said he could not afford to pay but tthat if anything happened to him she was to remember where the will was. She did not tell anyone about this call as she did not see any significance in it. On this account there were three separate calls within a short period of time in late December 1996. In her affidavit she referred to one call.

10[10]. The evidence of the defender was that despite the final separation the relationship between herself and the deceased was still good and they were still friendly. Following the final separation she lived at her parents' house for about two years and the deceased would visit her and Courtney at that house. She moved to Falcon Avenue in 1992 and he continued to visit at that address. He met the pursuer in 1993, but there was no change in his behaviour towards the defender or Courtney and he continued to visit. The defender has a child Zachary in 1994 to another man, but maintained there was still no change in the deceased's attitude towards her. She did not live with Zachary's father, the deceased continued to visit and continued to have feelings for the defender. The defender understood that the pursuer was not happy with the deceased visiting the defender's flat and was under the impression that, after a while, the deceased simply stopped telling her. The defender maintained that the deceased had asked for a reconciliation in 1994 after Zachary was born, but she had refused. This took place after he had started seeing the pursuer. The defender said that the deceased continued to visit her. He would just turn up at the flat or he would telephone in advance. There were no set times. The visits were sporadic but on average about one a fortnight. She said that in 1995 he asked her to remarry him. (This seems highly unlikely. Not only did he marry Arlene in March of 1995, the context of the defender's evidence was that this proposal had come before Arlene had become pregnant with Caitlin who was born in July of 1995. I think it quite possible that the deceased had asked her to remarry him at a much earlier time and had also at an earlier stage asked for a reconciliation, but I do not believe that either of these events happened in either 1994 or 1995.)

According to the defender the deceased's visits continued not only after his marriage to the pursuer, but after the birth of Caitlin. She said, "It was just the same". He would come to meet her when Courtney was coming out of school bringing with him Caitlin in her pram. She went on to say that she continued to see the deceased up until Daniel's birth (but I don't believe this, because she gave no detail of any of these visits. Moreover, I accept that the deceased might have occasionally seen her and Courtney after Caitlin's birth, but I do not think that there were regular visits, nor do I accept that the relationship was as categorised by the defender.)

There had been an issue between the defender and the deceased over his failure to pay maintenance of Courtney. She was not happy with this. She had first asked for maintenance after Zachary was born in 1994 but the defender would not pay maintenance. Although she and the deceased had words about this, she claimed it did not affect their relationship nor did it affect the frequency of his visits. (Again, I simply don't believe this.) She said that when she saw him after this, she simply did not raise the question of maintenance because she knew he would not pay. She contacted the CSA after Zachary was born, but did not think the deceased knew this.

She gave evidence of a chance encounter with the deceased and the pursuer shortly before Daniel's birth. This had taken place in the Safeway's in Morningside. The deceased and the pursuer had Caitlin with them and were accompanied by a friend, Gilmore Macpherson. Although they saw each other, they did not speak. She next spoke to the deceased about two weeks after Daniel was born when he called to tell her the news. She said she spoke to him again by phone around about the same time. This was after meeting them in Safeway. She said there was a phonecall before Daniel was born and one after he was born. The one before was after the Safeway encounter but before Daniel's birth. The deceased contacted her because they had not spoken in Safeway's and called simply to say hello. She said she could not recall the content of that telephone call. The second call was after Daniel's birth, and she asked again for maintenance for Courtney. However she then said that these two telephone calls were different. The call regarding Daniel's birth was a happy call. He then called again and she asked for maintenance. (On this account there are now three phonecalls, all within a relatively short period of time.) She asked the deceased if he could give her something for Courtney, but he said he could not. He said, "I can't afford to give you anything for Courtney, but if anything happens to me you know where my Will is." That at least was the gist of it. (I simply don't believe this. Not only is it highly unlikely that such a conversation should take place in the circumstances she described. The way in which this alleged conversation was brought to light are such that I cannot accept that it was said. It is clear that she said nothing about this call at the time and the first mention of it comes through her affidavit in the middle of 2006. I will come back to this later.) The deceased said she did not tell anyone about this call because she saw no importance in it.

She claimed that she continued to see the deceased after Daniel's birth and until he moved to Falkirk some time in 1997. Until then he was visiting the flat regularly and they were still good friends. However, when he moved to Falkirk in 1997 she did not see him again. (I'm sure that's right, but I don't think she was seeing him regularly until that point in any event. First of all, it seems highly unlikely that such regular contact would ceased immediately on his moving to Falkirk if it had actually been taking place. In the second place, even her own evidence is very vague, apart from mere assertion, about visits. Moreover, she herself had previously said that the visits stopped after Arlene came on the scene in 1993. She said that in her interview with her solicitor in 2003.) After the move to Falkirk he kept in touch by phone. The calls diminished until it was just a couple of calls a year to let her know he still thought about her. He had phoned her parents' house to try to contact her in February 2003, not long before his death. The calls got less and less after he moved to Falkirk. She last actually spoke to him in July or August of 2002. (There is then evidence about the tattoo which I think is of no significance whatsoever.)

After Mr Greenan's death she contacted solicitors about the Willwill. The pursuer's agent Philippa Snell of Snell & Co was sayingclaimed that the Willwill was automatically revoked and the defenderbut she disputed that, being of. Her the view is that he the deceased wanted intended the Willwill to stand. She consulted Doyle & Co, then sought a second opinion from Messrs Stuart & Stuart before returning to Doyle & Co.

11.[11] In cross-examination it was put to the defendershe said that the original source of her averment that the deceased had received legal advice to make a Willwill following the birth of his children but had declined to do so, was not a letter dated 19^th November 2003 sent by another solicitor toto her by John Colquhoun of Stuart & Stuart. , but Her answer was that was not quite correct and that the information came from a conversation she had with Fergus McMillan at Stuart & Stuartof that firm after he had spoken on the telephone to Philippa Snell. His report ofHe reported that conversation was that Philippa Snell told him she had asked the deceased to make a Willwill on a number of occasions and he had refused. She was sure that she had been told this. Subsequently Mr Colquhoun also spoke to Philippa Smnell and she again said that she had asked the deceased to make a Will and he had refused. was given the same information, which he communictaedcommunicated in hisThis information was contained in Mr Colquhoun's letter to her of 19 November 2003. That letter was not lodged as a production, but Sshe said that she thought the wording wasit said that the deceased had been "pressurised" to make a Willwill but had not advised that he had previously made a Will. The letter of 19 November 2003 was not lodged as a production. Attention was drawn to the defender's affidavit, 7/2 of process, in which she described that letter as

"a five page letter in which she explained the law to me, gave me his opinion in relation to the law and highlighted the difficulties that I might have in invoking the terms of the existing Willwill. In the course of that letter he recorded that both he and his assistant had spoken to Philippa Snell to obtain information from which they could give me advice. In his letter to me, Mr Colquhoun used an expression, which I take to mean that Philippa Snell had told him that she had discussed making a new Willwill with Richard Greenan but that he had declined to do so."

She had read over and agreed this affidavit before signing it. The expression referred to was "he had pressurised him to make a Willwill and he had declined". She was not 100% sure but thought the word was "pressurised". He had also written that the deceased had declined to make a Willwill and had not mentioned that he had previously made one.. She added that Fergus McMillan had spoken to Philippa Snell and reported that in that conversation Philippa Snell had asked the deceased on a number of occasions to make a Willwill and he had refused. Shown Mr Colquhoun's file note 7/7 of process, which suggested that the deceased "like most young people hadn't got round to doing it", she said that "not getting round to it" is just the solicitor's point of view. She said it had been suggested that the deceased had forgotten the earlier Will, but she knew he had not done so. Moreover, when prompted by Philippa Snell he must have thought about what was going to happen when he died.

 

12[12] She did not know about the insurance policies nominated in favour of the pursuer prior to the deceased's death. She believed that he had left his Will standing knowing that she, the defender, would be fair and reasonable and do the right thing. It was not that she thought he had relied upon the policies alone to cater for the pursuer and his other children.

Further reference was made to her affidavit for the account she gave of in which she makes reference to the incident in Safeway's,k in Morningside in October or November 1996. In that she says, :

"We didn't speak, I found the encounter upsetting but after that Richard Greenan telephoned me, Daniel had just been born so it was probably in December 1996 that he telephoned me and he told me that he had had a boy. At that time Richard and I had a dispute about maintenance for Courtney, I told him that I found it all upsetting and his response was that he couldn't afford to pay any maintenance, but that if anything did happen to him that I was to bear in mind where his Willwill was registered. I knew that he had a Willwill which was retained by Lindsays, Solicitors."

She denied that she had shouted and bawled to such an extent that the pursuer and Gilmore Macpherson came from a different aisle to see what had happenedcreating a disturbance.. That was not true, nothing had been said. She denied that any telephone contact had been through her parents or that there had been no direct contact since 1993. She acknowledged that the deceased was working off-shore since about 1992. She maintained that there had been no significant change in the pattern of contact after the deceased met the pursuer. Her attention was drawn to 7/6 of process, a file note by Mr Fergus  McMillan's file note of his meeting with the defenderher on 13 November 2003 which. That records:

"He had not seen Amanda or his son for about nine years. Originally, he was exercising contact, but this stopped when Arlene came along."

In response to this, she claimed that it did not reflect what she said. She had said that contact stopped when he went to Falkirk.

 

13[13] At this point there was some evidence about when the deceased knew that she had contacted the CSA. She had contacted them after Zachary was born in 1994, but they did not look at the case until 1997. The deceased did not know that she had contacted them until the CSA contacted him when they started looking at the case. (Essentially on her evidence this must have been 1997 by which time, of course, he had gone to Falkirk.)

It was put to the defender that by November 2003 when she received the five page letter referred to above, she knew of the difficulties in the position she was adopting. Counsel's opinion was sought twice, once in July and once in December 2004. She agreed that she knew by November 2003 that anything the deceased had done to continue the Willwill was important and that she knew that by the end of 2003. . She knew that the alleged telephone conversation would be important and agreed that there was no mention of that in the defences. This It only came out when she had an in-depth conversation with her current solicitor Mr Doyle and her counsel Mr Kinroy. Until then meetings were quite brief. She said, "I didn't say what I knew. It depends what I was asked." (This is quite unbelievable.) She added, "I knew it, but I just hadn't said it."

[14] She said that she could not remember off the top of her head when she first She first said it, but it would be about 2005 to Mr Doyle in 2005,. She had told either Mr McMillan or Mr Colquhoun. She did not meet either of the counsel who prepared the opinions. She agreed that the first time it appeared in the case was inbeing July 2005 when she was ordained to produce affidavits by the court. .She said that the court order was not the reason that the information was given, it simply came out in conversation.

14[154] She accepted that tThere was no mention in the pleadings until last month (December 2006 ) regardinof g the deceased's request for a reconciliationreconciliation or his proposal of remarriage as . She said no one had asked her about this until September. That was the first mention of the deceased's suggestion that they re-marry or reconcile. She had given this information because it was her understanding that the other side wanted a statement of her relationship with the deceased. Previously she had not seen what relevance it had to the question of his making a Willwill. (Again, on her argument that it was his intention that the Will should continue, this is somewhat difficult to believe.)

15[165]. When the deceased tried to contact her in February 2003 she tried to respond but got no answer. She agreed that, as recorded in Mr.  McMillan's file note of 13^th  November, she had told her parents at the time that she did not want to speak to the deceased. Reference was made by counsel to the file note of Mr McMillan's meeting with her on 13 November, 7/6 of process, which records:

"About two months before he died Richard had tried to contact Amanda. He had phoned her parents to try to get her number. She had told her parents, however, that she did not want to speak to him."

She did not want to speak to him she said This was because the CSA were then trying to get arrears of thousands of pounds of support from him.

16[176] In re-examination she said she told Mr McMillan that there had been no contact for nine years "off the top of her head". She probably did say that it stopped when Arlene came along, but that is not what she meant. SAgain, she just said it "off the top of her head". She was still shocked about the death.

17[187] Evidence was given by the pursuer's former solicitor, Philippa Snell. She was involved in had a small chamber practice and this was her first case of the conditio. The pursuer had become a client in February 1993 when she purchased a house, the in King Stables Road. Her first contact with the deceased was being when the pursuer wished to re-mortgage that house and required the deceased'shis consent was required. He The deceased actually became a client when he and the pursuer were purchasingthey bought a house in Falkirk in the first half of 1997.

18.[198] Following a complaint by Courtney Greenan as to the way in which she had handled the deceased's estate, she wrote a letter to the Law Society dated 10 December 2004, which was 7/1 of process. Having been consulted by the pursuer and being made aware that the deceased had previously been married and had a child, Miss Snell wrote directly to Amanda Courtney indicating her belief that the estate was an intestacy. There then followed correspondence with the defender's then solicitors, Doyle & Co, from which she understood that it was agreed that the estate would be dealt with wound up as an intestacy. on the basis It was her belief, having been made aware of the Will, that the Willwill was capable of being revoked by the operation of the conditio.o and she understood Doyle & Co to agree with that finding. She thereafter continued to ingather the estate on that basis. However, she received a letter dated 7 November 2003 directly from the defender personally, which indicated that the defender she was not in agreement with that position. On 13 November 2003Thereafter Ms Snell she was contacted by Mr McMillan McMillan of Stuart & Stuart , acting for the defender.on 13 November 2003. She said, they " discussed what had happened to date and in general how the conditio would operate." Mr McMillan was unfamiliar with the conditio and intended to speak to one of his partners, Mr Colquhoun. In relation to that conversation she was shown Mr McMillan's file note, 7/7 of process, which records his account of that conversation. She said, "I accept we discussed what had happened to date and in general how the conditio would operate." She said that Mr McMillan was unfamiliar with the conditio and intended to speak to one of his partners, Mr Colquhoun. Paragraph 3 of Mr McMillan's note records her as saying "she advised her clients previously that it would be sensible to make a Willwill. She did not hear anything from them.", Her position was that this dDdid not record what she said at all. Mr.Mr  Colquhon's file note of a subsequent cionversationconversation with her on 17^th November, recording "Mrs Snell had in fact asked them both to make Willwills on more than one occasion, but like most people they had never got round to doing it.", waswWas also inaccurate. She said, "Ihad " never said I had previously advised them to make a Willwill." She was then shown Mr Colquhoun's file note of a conversation with her dated 17 November 2003, which is 7/8 of process and in particular the first paragraph on page 2, which records: "Mrs Snell had in fact asked them both to make Wills on more than one occasion, but like most people they had never got round to doing it." She described the context of this conversation as an illustration of where the conditio could or could not applyShe was anxious in the call to explain why she had proceeded as she had, that she and why she had acted as she did. was initially ignorant of the will and had later had the agreement of the defender's solicitors. That sentence contained Mr Colquhoun's words, not hers and were virtually the last thing he had said before terminating the call. She was sure about this because she was concerned that it might appear to reflect adversely on her professionally if another solicitor thought she had proceeded to wind up an estate on the basis of intestacy when there was a Will. She wanted them to know that there was no knowledge on her part of a Will initially and that she had then proceeded with the agreement of the defender's solicitors. Similarly, her conversation with Mr McMillan had concentrated on general discussion of how the conditio might or might not operate, which was not his field.

19.[2019] In that context she might have said thatIn discussing the conditio with Mr. Mr McMillan she might have used as an example of where one would be barred from relying on it, a situation where repeated advice to make a will had been given. However, she did not say that she had in fact given such advice in this case. if she had advised them repeatedly to make a Will, it would bar her from using the conditio, but she did not say that. Where she buys a house with for two clients who are not married, she generally does adviseadvises that it would be appropriate tothey should make a Willwill but does not do so where, as here, the client are married and she had no knowledge of the prior marriage. In the present circumstances there was no knowledge of the prior marriage and her clients were married so there was no need to offer such advice. . She insisted that sShe did not never "pressurised" people into making a Willwill. If she had known the background she might have written suggesting it, but no more. She had in fact had no idea of the other circumstances in this case and the law of intestacy would normally take care of the situation in which her clients had been. She believed the words "like most young people" were Mr Colquhoun's. She did not say that she had asked them to make Wills on more than one occasion.

20[201] She recognised that two separate solicitors, four days apart, must have misinterpreted what she said and had been staggered to discover this. Her recollection was simply that the discussions were in some detail about why and when the conditio would apply. She said that if she. hHad she urged the deceased to make a Willwill, she would not have treated the estate as an intestacy. She had no reason to think the conditio would not apply. (This seems to be the critical issue for her and is what she was worried about. She seemed particularly anxious to repel any suggestion that it was inappropriate to treat the estate as an intestacy. This might stem from the completely unfounded allegation that she had pressurised the deceased to make a Will. I can see that this might have been a source of anxiety for her and has perhaps coloured her recollection of the conversations with Mr Colquhoun and Mr McMillan. After all the suggestion was being made that it was something in Mr Colquhoun's letter of 19 November which had indicated that she had pressurised the deceased. Had that actually been in Mr Colquhoun's letter, which it clearly was not, that would have been a serious misrepresentation, particularly the comment that he had declined to make a Will.)

She found the contents of the file note 7/7 and 7/8 odd and upsetting.

Her initial recollection was that she was first told of the previous marriage on 2 May but on seeing a file note of 10 April, recollected that it was in fact on that date. HeIn ar letter to the Law Society, 7/1 of process, , (dealing with a complaint from Courtney) in the penultimate paragraph, statesshe wrote:

"... we would request a copy of any statement that we have made indicating that we had 'indeed pressed our client to make a Willwill' as stated in the short history produced by Mr Courtney Greenan. Our position on this matter is that we would have suggested to Mr and Mrs Greenan at the time when they purchased their matrimonial property that it would be wise to make a Willwill, that our procedure as a firm would never be to 'press' a client to make a Willwill, and we certainly did not do so in the case of the late Mr Richard Greenan."

That letter should have read that she "might have" suggested that they make a Willwill. She could not say that the word "Will" did not pass her lips but was certain that she did not press him to make a Will. She could not rule out that she suggestedsuggesting it but no more than that and certainly not repeatedly. it and the word "might" would be more accurate. She read 7/7 as indicating that she was "pressing" them. (I can't see why she reads it this way and that leads back to my previous comment about her anxiety.) She would prefer it if 7/7 had said she "might have" raised the issue of making a Will, but she certainly had no recollection of doing so. She simply could not rule out that she might have done. She agreed that a passing comment at the end of a conveyancing transaction would not cause concern about her proceeding to wind the estate up as an intestacy, but she was trying to tell them why she had done what she had done. She was adamant that she had not been definite about giving advice and definitely had no recollection of it. At most it would have been a passing comment. Despite the wording of 7/1 of process, even the phrase "would probably have" would be a bit strong according to her recollection. It was not her invariable practice to do so. Again she repeated that the reason she was so sure she had not said these things to Mr McMillan or Mr Colquhoun was that she was anxious for them to know why she was acting as she was acting.

 

21[221] She accepted that the confirmation 7/9 of process, signed by the pursuer on her advice, was incorrect in that it suggestedsuggesting that there was no prior Willwill. , but However she wshe was at that time proceeding with an agreement of the defender's solicitors that the Willwill was capable of being revoked. and that intestacy was appropriate. With hindsight, the filling in of the form might have been inappropriate. The sums paid by way of insurance in favour of the pursuer had amounted to a figure in the region of £64,000.

 

22[232] In cross-examination she said that she was the only person who had dealt with the transaction for the Greenans. She had never made any conscious statement that Mr Greenan should make a Willwill and he had never declined to do so. The whole correspondence file for the transaction was produced - 6/4 to 6/63 of process. She was then taken through this her correspondence file and it became apparent that there was no mention anywhere of the suggestion that a Willwill should be made. It appears that she met the deceased three times, twice as a client.. The first was in relation to the re-mortgaging, when he was not a client, the second was in relation to the sale of King Stables Road, which was around the same time as the third meeting, which was in relation to the purchase in Falkirk. Because the deceased worked off-shore, he had signed a Power of Attorney to enable the transaction to be completed. They spoke infrequently on the telephone. Neither her correspondence, nor file notes, indicate any mention of a Will. Her position is that it would simply not have cropped up. She did not believe that she spoke to the deceased in person or on the telephone other than as recorded in her file. She had absolutely no recollection of making mention of a Will. . The letter of 7/1 of process to the Law Society was in response to a lengthy complaint by Courtney Greenan, which contained a statement that she had repeatedly pressed the deceased to make a Will, something she would never have done. That is the context of the second last paragraph of her letter. There was never a response to her request for sight of any statement that she had "pressed" him. She was completely staggered when she received the affidavits from Mr McMillan and Mr Colquhoun, 7/3 and 7/4 of process, both of which seemed to suggest that Miss Courtney's assertion on record that "Mr Greenan was advised, following the birth of his children with the pursuer, by his legal advisers Snell & Co, Solicitors, to make a new Will but declined to do so" had come about as a result of the contents of the letter written by Mr Colquhoun on 19 November 2003. (As will be seen from the evidence of Mr McMillan and Mr Colquhoun, this was in fact completely incorrect and they themselves could have no reason to think otherwise. Quite why they felt able to comment on the reason for an averment appearing in the defender's pleadings is a mystery and despite Mr Colquhoun's suggestion that the wording was his rather than Mr Doyle's, I find that difficult to accept and think that his recollection must be at fault on this matter.) Mrs SnellShe was astonished when she got these affidavits, suggesting that the assertion on record came from a letter of Mr.  Colquhoun following on his discussion with her.

particularly as there had been no suggestion at any point that they thought she had acted improperly and they themselves withdrew from acting from the defender after tendering for certain advice. (Again, this harks back to her anxiety over these comments.)

So far as the reference in the confirmation to an absence of previous Wills is concerned, this is taken as referring to documents which actually govern the estate and did not apply in this case as no one was saying that it should proceed other than on the basis of intestacy.

A comparison of how the estate would be divided according to the Will and on intestacy can be seen in 6/65 and 6/66 of process.

In re-examination, she again said she wished to make it clear that she had no recollection and that there would have been no more than a passing comment had she said anything.

23.[243] Mr Fergus McMillan, Solicitor, spoke to beingwas consulted by the defender in November  2003. She was essentially seeking a second opinion, not being happy with advice she had received from Doyle & Co. When he telephoned Mrs Snell, he was unaware that any legal principle might be involved. He spoke to to his conversation with MrsMrs Snell saying that she, who told him she had advised the deceased to make a Willwill but did not here informhear from him. She subsequently became aware that there was already a Will. She explained that the conditio was applicable and that the Will would be revoked and the rules of intestacy would apply.

Reference to the conditio at that point meant very little to him.

24[25] His file notes are dictated from handwritten notes and are often not read by him before filing. He thought 7/7 of process was quite a comprehensive note of the conversation. He believes that he hashis file note recorded what Mrs Snell said. and did not think he had asked her about whether she had tendered such advice. He said that it was difficult to know whether he was remembering the file notes or the actual conversation, but thought itIt would be odd to narrate what he had done hadunless Mrs Snell not had told her him that. He would be surprised if she suggested she said no such thing. He cannot see why it would be in his file note if it did not happen. She told him she had advised them both to make a Willwill. He was sure His affidavit, 7/4 of process, was accurate.

Mrs Snell did discuss the conditio, although he did not recall her giving examples of when it might or might apply. He thinks she assumed he had more knowledge about the conditio than he in fact did.

Sshe did not say that there had been a refusal to make a Willwill. He was sure about that. She volunteered this information, but it was a very brief part of the conversation. It was not his recollection that she had said "might" rather that she had advised them. When she mentioned the conditio, he realised he would have to speak to a colleague.

25.[264] His affidavit 7/4 of process stated:

"I have been asked to comment on Ms.  Courtney's assertion on record that "Mrs . Greenan was advised, following the birth of his children with the pursuer, by his legal advisers Snell & Co., Solicitors, to make a new will but declined to do so".

That part of the first defender's pleadings was, I understand, included because of the contents of the second paragraph on the fourth page of a letter written by my partnetr John Colquhoun to Ms Courtney on 19^th November 2003.""

[275] He could not understand why he should be commenting on the defender's pleadings or the reason for them as he had not seen the pleadings. He had seen Mr Colquhoun's letter of 19 November, but was unable tocould not explain the reference to it as justifying the defender's affidavit averment. on record as contained his affidavit 7/4 of process. He thinks thought the words in that affidavit were suggested to him. . He had not seen the pleadings at any stage and could remember whether anyone had quoted them to him. He could give no evidence say nothing about the timing of any advice which Mrs Snell might have given. He was sure she that Sshe had not mentioned that. He was quite sure he did not say to the defender that he had information that the deceased had refused or declined to make a Willwill and he was quite sure of that. If the defender said otherwise, that was incorrect.

As to the contents of paragraph 5 of his file note 7/6 of process, that must have been said, although he would have struggled to remember it without the file note. The defender was a little agitated during that meeting, although not tearful or vocally distressed. He read over his affidavit at the time of signing it and was sure he thought it accurate when he signed it. However, he found the second sentence in the second paragraph odd and could not think why he should be commenting on the defender's pleadings since he did not know what they were.

26[286] Mr McMillan's partner, John Colquhoun, gave evidence of being consulted by Mr McMillan about the case and briefed on the file note 7/7 of process. He then spoke to the defender and contacted Philippa Snell. By that time he had researched the conditio and was at that time aware that it was available to be invoked in the event of a Will which did not provide for children born subsequently unless the testator could be shown to have done that deliberately. He understood it created a rebuttable presumption, which could be rebutted by provision of evidence that it was the testator's intent for the Will to stand, notwithstanding the birth of future children.

As to the content of his discussion wialso spoke to th Philippa Snell, , he thought they established establishing that steps had initially been taken to deal with the estate as an intestacy before the Willwill became known. When it did become known Mrs Snell had taken soundings from others and reached a joint view that the conditio could be invoked and almost certainly would be so that the case should proceed as an intestacy.

His own file notes are dictated from a handwritten note and he would see that note before it was filed to make sure of its accuracy and that nothing had been omitted. His file note of his conversation with Mrs Snell was 7/8 of process. They had discussed the process which had been initiated andShe referred to the fact that she had asked the pursuer and deceased to make wills, but they had not got round to doing so. Doyle & Co had apparently accepted that the conditio would apply, but communication had not been good or consistent and there was some doubt as to whether that properly represented the defender's views on the matter. As to the comment that Mrs Snell had asked them both to make Wills on more than one occasion, but like most young people they had never got round to doing it, he thought this was accurate. He thought he had accurately recorded the conversation. The file note would have been dictated more or less contemporaneously. and Hhe did not think his memory would be at fault. He nor would not he put in anything which he did not think to be true. It certainly records the sense of what was discussed. She must have said that they had been asked to make Willwills and that that had happened more than once.

[29] He took no significance from it since mMost solicitors have clients to whom they suggest a Willwill should be made, but who for various reasons do not proceed to do so.

The only significance of the comment was that they knew that a fresh Will had not been made so did not need to look for one. He could not say how close to verbatim the record was and did not think that the words were his own. It is more likely what she said, although he might have agreed that young people do not get round to making Wills when they should. He would be surprised if Mrs Snell thought nothing of the sort was discussed. If the report is not verbatim it is certainly the sense of what was discussed. He is confident that she must have said that she suggested that they make Wills. The rest of the sentence is either what she said, or his own gloss on a familiar situation, but she would not have said she had given that advice unless she had told him so. She must have said that they had been asked to make Wills and that that had happened more than once.

27[3027] So far as his affidavit is concerned, he thought he had not seen the averment on Record. His letter of 19 November was intended to explain the conditio and put it in the context of what the defender would require to do to counter the rebuttable presumption. He would have advised that she could only succeed if the testator had chosen not to make a new Willwill.

His letter explained the conditio and his views on it, and his views on the difficulty which might be faced in rebutting the presumption. He thought the defender understood what he was saying, but did not think she agreed with it.

28[3128] As to the his affidavit, which was in similar terms to Mr.  McMillan's, his recollection is that someone had told him what was in the Record and that either he or Fergus McMillan had composed the affidavit. His "understanding" as toof the reason for the averments were on Record, can only have come from Doyle & Co. He cannot recall precisely the content of his letter of 19 November. He had no recollection of Mrs Snell referring to Tthe timing of any advice she Mrs  Snell might have given. That was not part of the his discussion with her. As far as the comment that the deceased had "declined" to make a Will, Mr Colquhoun's understanding was that it was simply that he had not got round to it. There was no basis for using the word "declined" in the sense of "refused". He had no greater recollection than in the note regarding whether the word "both" had actually been used by Mrs Snell.

He could not recall precisely the content of his letter of 19 November, . In his letter of 19 November hebut Bbut it did not say that the deceased had declined to make a Willwill. The only information he had was the file note and his conversation with Mrs Snell and his sight of Mr McMillan's file note. That file noteThe latter might have coloured his expectation of hearing something along those lines from Mrs Snell. He had no further recollection of his own conversation with her than the note. It was likely that they discussed the general application of the conditio. The sense and content he took fromof his conversation with Mrs Snell was that the deceased had not got round to making a Willwill. It was not a sense of having refused. or rebuffed her suggestion. He had no idea of how forcefully or otherwise she had put the matter. He had no impression that she had been presseding the deceased or that he had been vigorously resisteding or refused.

29[3229] The defender's mother gave evidence as to the closeness of her the relationship with between the deceased and the defender, and in general terms this was much in line with the defender's evidence of the development of the relationship and so on. . After the final separation the defender returned to stay with her and the deceased stayed with her other daughter until the matrimonial home was soldvisited. After that he bought a flat in Yeaman Place and after thathe moved from the locality they "we "didn't see that much of him", although she thought they continued to see each other. She knew that the deceased had helped to do up Falcon Avenue, sanding floors and so on. This was about 1994. As for other examples of contact, "I was really out of the picture then." The defender told her of meetings which had taken place but she did not know how often this had happened.

[30] Asked when the contact ended she said, "Presumably when all the wee jobs were done". Later she said "Ricky just went on to get a new life for himself and things just drifted apart." The defender and the deceased remained friends. He phoned her from time to time and they saw each other occasionally after 1994.

[31] In cross-examination she agreed that after the defender moved out the only knowledge that she had about contact was second-hand "except a couple of times I saw him or I met him when I took Courtney swimming", of which she gave examples. The defender did tell her that he had asked her to re-marry him but she did not know when this was. Mrs Courtney had met the deceased a couple of times in Falcon Avenue, once when Zachary was a few months old.

[32] The defender's father gave similar evidence as to the nature of the relationship. When the defender returned to live with her parents the deceased still visited and they always looked happy together. He visited once a week or once a fortnight. When he moved to Yeaman Place he did not come to the house very often. At Falcon Avenue, in about 1994, the deceased did all the decoration. This was in about 1994, the year Zachary was born. He did not see the deceased after Zachary was about five or six months old. The defender would talk about contact having taken place. He said that they all came to the Courtney's house at Christmas 1994 and the deceased had a present for Zach, as well as for Courtney. He though that the visits stopped when the deceased moved to Falkirk. At no time had the defender stopped

the deceased from seeing Courtney. He agreed, in cross-examination, that after the deceased was involved with the pursuer, face to face contact diminished.

[33] Arlene Greenan gave evidence that she first became aware of the will in about May 2003. When she met the deceased she knew he had been married before and had a son. At first he had sporadic access to Courtney, but she was not aware of access from about May or June 1993, from about Courtney's 4^th birthday. She did not have any suspicions that he was seeing them and not telling her and could see no reason why this should happen. It was possible but highly improbable or impossible. As far as she was aware the issue of a will was never mentioned in the contact between Snell & Co and the deceased. It was certainly never mentioned at any meeting or conversation in which she took part. The deceased had never indicated that a will had been discussed.

[34] As to the Safeway incident, the deceased was in one aisle with Caitlin in the trolley, and the pursuer and Gilmore Macpherson were in another aisle. Hearing raised voices, they went back and found the defender shouting at the deceased.

[35] By December 1994 she and the deceased were engaged and spent Christmas together at her flat. They had bumped into the defender's mother at the Commonwealth Pool early in 1993. She was aware of no other such incident. She would find it very surprising if the deceased had called the defender in December 1996.

[36] Gilmore Macpherson also recalled the Safeway incident. He and the pursuer were in one lane, the deceased and Caitlin in another, when they heard the defender's voice talking in a loud manner.

[37] He was not aware of the deceased keeping contact with the defender after his relationship with the pursuer had started and was confident that he would have been aware of that, even had the deceased wished to keep it from the pursuer. They were the closest of friends.

Submissions in law

General

[38] On the general principles which apply, counsel were in basic agreement. Reference was made by both to the treatment of the conditio in the Stair Memorial Encyclopaedia Vol.25, paragraphs 751-754, where it is pointed out that:

"The principle applies when a testator has made a will which contains no provision for children who may subsequently be born to the testator. If children are born after the date of execution of such a will, it is presumed that the testator did not desire his will to remain in effect in the altered circumstances; unless the presumption can be rebutted, the will is revoked and the result is usually intestacy."

The principle

"... is not one of automatic revocation of a will ... Instead it is a presumption for the benefit of the after-born child and based on equitable principles."

It

"....may be rebutted by clear evidence that the testator intended his will to be effective, notwithstanding the subsequent birth of a child."

At paragraph 753 it is observed that:

"The mere fact that a long time elapses between the birth of a child and a date of the testator's death does not overcome the presumption in favour of revocation."

It is further suggested that:

"... however long a testator may have had to consider whether he wished his will to remain in effect, the court will not accept this by itself as evidence rebutting the presumed intention to revoke."

[39] Counsel for the defender submitted that the passage of time is nevertheless significant as one of the circumstances to be taken into account. Counsel for the pursuer emphasised that the presumption could only be rebuttted by "clear evidence".

Relevancy

[40] The arguments on relevancy anticipated at the outset by Mr Sandison became redundant since (a) it was accepted by Mr Kinroy (a) that the averment that the deceased had "declined" to make a will had not been established; (b) that unless the evidence of the telephone call of November 1996 were accepted there would be insufficient in the case to rebut the presumption; and (c) that the evidence relating to the nature of the relationship between the defender and the deceased was only relevant to the extent that it lent context and credibility to the defender's account of the telephone call.

Admissibility

[41] A large part of the submissions therefore turned on the admissibility or otherwise of the evidence relating to that telephone call.

Defender's Counsel
[42] Counsel for the defender referred to Elder's Trustees v Elder (1894) 21 R. 704 where Lord Adam, at p.708, noted that in an earlier case

"... the court held that whether revocation of a will by the subsequent birth of a child was to be implied or not, was entirely a question of circumstances. That being so, it appears to me that a birth of a child affords only a presumptio juris that the testator does not thereafter intend the will to remain valid.

The presumption will be of varying force according to the circumstances of the case, and may, like any other presumption of law, be rebutted by evidence of contrary intention. But if there be no evidence of any contrary intention, it appears to me that the presumption must prevail."

In the same case at p.709, Lord Kinnear said that the presumption "... may be rebutted by evidence of contrary intention" noting that:

"the force of the presumption may depend upon the circumstances of each particular case. I therefore agree with Lord Adam that the true principle is this, that the subsequent birth of the child raises the presumption of revocation, - that the inference which the law requires us to draw from that single fact may be rebutted by the inference of a contrary intention, which may be deduced, if so be, from other facts and circumstances; that in the absence of evidence to the contrary the presumption must hold."

In that case a proof was not required since no party was seeking to lead evidence to rebut the presumption. However, Lord Kinnear noted that:

"... if we were asked to allow a proof of fact tending to shew that the testator did not intend to revoke the will, - tending to set aside the presumption of law, - then it would be quite right and necessary that all relevant facts on the other side should be admitted to probation also."

Counsel submitted that evidence of the type which he sought to rely on was not excluded by anything in Elder's Trustees. Lord Kinnear's opinion appeared to envisage that if evidence to rebut the presumption were offered, evidence to fortify it would be equally admissible. A sentence in paragraph 833 of volume 25 of the Stair Memorial Encyclopaedia, that in cases of revocation of a will by the birth of a subsequent child, evidence of testamentary intention was admitted "in support of the will but not against it" was to that extent incomplete. The case of Elder was silent on the nature of the evidence which might be admitted. Counsel submitted that it would be competent, either to fortify or rebut the presumption, to lead evidence of the testator's intention, including both written and parole declarations.

[43] Counsel made this submission cognisant of the passage in Green's Encyclopaedia, Vol.4, para.756 which states that:

"If the testator has indicated clearly, either in his settlement or otherwise by writing, that his omission to provide for his children was intentional, the conditio will not apply. Thus, if after the birth of children who were born subsequent to the date of the settlement, it is established that he treated the deed as still effectual, or made a codicil or deed in relation to his disposition of his estate in the will, the presumption will be rebutted. Not only probative deeds but memoranda or letters under the hand of the testator may be referred to in order to ascertain his intention in this matter; but it is not competent to prove, by parole, declarations of the testator's intention, either as setting up the will or as fortifying the presumption against its subsistence."

Counsel noted that the statement that parole evidence of declarations was incompetent bears to be vouched by McKie's Tutor v McKie (1897) 24R 526 but that case did not vouch the proposition. The source for it was in fact Rankine v Rankine's Trustees (1904) 6F 581 in which a distinction was made between parole evidence and writing. Lord McLaren at p.583, discussing circumstances which might displace that presumption, said

"I sympathise very strongly with the observations made by Lord Rutherfurd-Clark in the case of Dobie, that such circumstances, in order that they may have decisive weight, must be evidenced in writing, but not necessarily by a formal deed, because there might be memoranda or letters under the hand of the testator showing clearly that he had considered that the will made before marriage was operative, or that he had not considered it operative. In the present case we have no such evidence in writing, and parole evidence has been held in previous cases to be insufficient to displace the presumption of revocation."

Counsel submitted that these comments were obiter and that parole evidence may be sufficient to rebut the presumption. There was no justification for a distinction between parole evidence and writing.

[44] He proceeded to the comments of Lord Rutherfurd-Clark in Dobie's Trustees v Pritchard (1887) 15R. 2, at p.4, where his lordship greatly doubted whether the will could be set up

"... by the mere surviving of the maker without executing a subsequent deed ... I am much inclined to the opinion that the revocation was absolute, and that, even had the maker survived the birth of the child for a long time, the will could receive no effect. I doubt whether survivance, however long, would justify us in holding that a wish was implied that the will should receive effect."

[45] He then referred to Smith's Trustees v Grant (1897) 35 S.L.R.129, where Lord Stormonth-Darling observed that:

"... the case of Elder's Trustees and the comments of Lord McLaren upon it in the case of McKie are conclusive against the competency of any proof of declarations of intention either of setting up the will or as fortifying the presumption against its subsistence."

However, Elder's Trustees made no observations as to the nature of the evidence which would be competent so Smith's Trustees proceeded on a misreading of that case. Moreover, Smith makes no distinction between written declarations as opposed to parole declarations. Counsel then turned to the case of McKie's Tutor v McKie (1897) 24 R. 526 in which Lord Adam at p.528 said that the presumption

"can only be rebutted by proof of facts and circumstances shewing that the intention of the testator was that the will should stand".

Counsel submitted that parole declarations would come within the definition of "facts and circumstances showing that the intention of the testator was that the will should stand". Lord McLaren, at the same page, said:

"The case of Elder is important in this connection, as it settled this point, that the court will not allow proof of declaration of the deceased as either setting up the will or as fortifying the presumption against the subsistence of the will. For in that case the Lord Ordinary had allowed a proof, but the interlocutor was recalled by the Inner House, and judgment was given upon the known and undisputed facts appearing on the Record."

[46] Counsel submitted that these comments of Lord McLaren were not a correct analysis of Elder's Trs, which in turn also weakened the decision in Smith since it specifically proceeded on the basis of these comments.

[47] In McKie Lord McLaren goes on to say:

".... It rather appears to me that the presumption can only be displaced by something that amounts to a tangible and clear expression of the testator's wish that his will should subsist, e.g., by his executing a codicil to it, or by his taking measures of precaution shewing that he treated his will as a subsisting document................. for example, if the testator had taken great care to preserve his will, or had made some written reference to it after the lapse of years from the birth of a child."

[48] Counsel then referred to Milligan's Judicial Factor v Milligan 1910 S.C. 58 at p.61 in which Lord Lowe suggested that had a will been retained by the testator and later given by him to his law agent for preservation after the birth of his child, that might have been a significant circumstances in favour of the will. Counsel suggested that the comments allegedly made by the deceased to the defender would come into the same category. Finally, Counsel referred to the case of Adamson's Trustees v Adamson's Investors 1891 18 R.1133 at 1137 where the Lord Justice Clerk considered that trust in a surviving parent to provide for the children from the inheritance was a relevant factor.

Counsel for the pursuer

[49] Counsel for the pursuer agreed that Elder's Trustees decided nothing one way or another on the admissibility of declarations of intent. So far as McKie is concerned, Counsel could not say that Lord McLaren was correct in his characterisation of the case of Elder's Trustees at p.528. However, great weight ought to be attached to the fact that this is an opinion of Lord McLaren, relating to wills and succession. He does not express surprise at the notion that oral expressions of intent would be inadmissible. Moreover, he goes on himself to refer to tangible and clear expressions of intention and the only examples he gives are those of writing or of actions. Furthermore, his opinion in McKie was concurred in by Lord Kinnear, who gave the lengthy opinion in Elder. Oral utterances would not be constitute examples of clear and tangible expressions of intent. Such a position is entirely consistent with the general law on revocation of wills. A will can only be made in writing and can only be revoked in writing or by acting in a way which is inconsistent with the intention that the will should continue, for example by destroying it or by making substitutions in it. It is therefore natural to say that one is looking for writing or for actions inconsistent with the will in order to rebut the presumption.

[50] No oral declaration one way or the other was admissible. Counsel then referred to Stewart Gordon's Trustees v Stuart Gordon 1899 1F.1005, one of the few cases in which the presumption has been successfully challenged. In that action, however, there was both action and writing because the testator, in the full knowledge of her pregnancy and in contemplation of the possibility of her death, recognised and adopted a pre-existing will as the settlement which was to regulate her succession. This was therefore an expression of intent that was both clear and tangible. Counsel relied on the passages quoted above from Rankine v Rankine's Trustees and drew attention to the Opinion of Lord Kinnear at p.584 where he stated:

"It is enough that it is quite settled in our law that the birth of a child operates to revoke all previously executed wills, unless something is done by the parent to set up the will."

Counsel submitted that the content of the telephone call in question could not in any circumstances be regarded as steps taken to preserve the will of the type referred to in certain cases. In itself, lapse of time tells us nothing without a reason for it since it could equally be procrastination as deliberate intention. Reference was also made to Rankin v Rankin's Tutor (1902) 4F 979 and Knox's Trustees v Knox 1907 S.C. 1123.

Facts

Defender's Counsel

[51] Turning to the facts, counsel submitted that the case turned on whether the deceased intended his will of 1989 to be the final expression of his testamentary intention. One had to look at the whole circumstances relevant to that question. He relied on five specific issues, namely: (1) the telephone conversation with the first defender in December 1996; (2) the nature of the relationship between the deceased and the first defender which lent credence to the call having taken place; (3) the evidence that Pippa Snell suggested to the deceased, after the birth of his last child, that it would be wise or sensible to make a will, and that she did so on more than one occasion; (4) the fact that the deceased had made some provision for the pursuer by nominating her as the beneficiary of certain policies; and (5) the passage of time during which period the deceased neither revoked the will nor made a new one.

[52] The case critically depended on the first defender's evidence that the deceased said what she claimed he did in the telephone conversation in December 1996. If that were inadmissible the presumption could not be rebutted. Equally if she were disbelieved on that point the presumption could not be rebutted.

[53] Counsel took into account the nature of the evidence from Pippa Snell, which he acknowledged did not extend either to urging the deceased to make a will or to his declining to do so. However the fact that he knew where the will was and referred to it in the telephone conversation, coupled with Pippa Snell's suggestion, his inactivity and the passage of time amounted to enough to rebut the presumption.

[55] The nature of the relationship after separation is important to make acceptable the evidence about the phone call, which otherwise would be difficult to accept. Counsel invited me to hold that the remark was made, that the inference was that the deceased felt guilty about not paying maintenance for Courtney, and that factor, coupled with this very strong feeling for the defender, induced him to say what he did. The timing of the remark was critical since it was after the birth of the youngest child. It should be held that it indicates that he wished the will to remain in force.

[55] He submitted that the first defender was a witness of credit, although her evidence was occasionally confused regarding dates and was confused, or indeed simply wrong, about what she understood Fergus MacMillan had told her about his conversation with Pippa Snell. However, she had no difficulty pinning the conversation regarding the will to the end of 1996, just after the birth of Daniel, and she should be accepted as credible, reliable and sincere. He invited me to accept the defender's account of what took place in Safeway's. Her evidence in general was supported by that of her parents. Her mother knew that the deceased had proposed re-marriage, evidence which came out almost by accident.

[56] There is a very sharp contradiction between the evidence of Mrs Snell and that of Fergus MacMillan and John Colquhoun. It is hard to see how both Fergus MacMillan and John Colquhoun could make the same mistake. Mrs Snell's evidence was also inconsistent with her own letter 7/1 of process.

Pursuer's Counsel

[57] Counsel considered it significant to draw attention to the way in which the defender's case had been presented on Record, regarding the averment that the deceased had declined to make a will. This averment could not be sustained as true and counsel for the defender did not suggest that it could be. Counsel then traced the history of the averment, suggesting that the way in which it came to be on record was damaging to the defender's credibility. Mr Colquhoun's letter of 19 November could not have provided any basis for an averment that the deceased had declined to make a will, as John Colquhoun himself entertained no such view. In evidence, changing her position, the defender said it had come from something which Fergus MacMillan had said to her. However, Fergus MacMillan denied that any such conversation had taken place nor would he have had any basis for saying such a thing.

[58] However, there remained the substantive issue of whether as a matter of fact Philippa Snell ever suggested to the deceased that he should make a will. The evidence suggested that if advice were given, it was given to both the deceased and Arlene Greenan, who was clear that no such advice was given. If it was not given to her it was less likely that it was given to the deceased. Nor is there anything in the file to suggest that such advice was given. It would be difficult to conclude that such advice was given far less that it was given repeatedly.

[59] Much of the evidence about the nature of the relationship, was exaggerated, and was difficult to reconcile with the known objective facts including an early separation, a subsequent separation followed by divorce and the deceased's remarriage. Numerous aspects of the evidence undermined the credibility of the defender: the dispute about the Safeway incident, the allegation that Fergus MacMillan told her that Philippa Snell had pressurised the deceased to make a will, and the fact that the defender herself had previously said that contact virtually stopped after Arlene Greenan came on the scene.

[60] So far as the telephone call is concerned, counsel's main point was that it was inadmissible. In any event, he submitted that it had not taken place. In the whole context of lack of contact and the deceased's new life, such a call was highly unlikely. Nor is it believable that the defender would not have mentioned it earlier if true.

Discussion

Admissibility

[61] I accept that once evidence is offered to rebut the presumption evidence to fortify it must equally be admissible. However I do not consider that parole evidence of the kind relied on by the defender in this case is admissible. None of the cases relied upon by the defender relates to the admission of parole evidence and where opinions are expressed about the matter generally they are against the admission of parole evidence. There is a clear expression of opinion from Lord MacLaren in Rankine which does not solely refer to his agreement with Lord Rutherfurd Clark in Dobie. In McKie it is correct that Lord MacLaren proceeds on a view of Elder's Trs which is not apparent from the face of the report in that case. However, it seems to me an important consideration that in the same case he states separately that the presumption can only be displaced by something which amounts to a "tangible and clear expression of the testator's wish", going on to provide examples which are not consistent with the notion that parole evidence is sufficient. Smith's Trs does seem to proceed on a misreading of Elder's Trs but it remains consistent with McKie. Accordingly I conclude that the evidence as to the alleged telephone call is inadmissible.

[62] Whilst I can see that the nature and extent of other provision for after-born children may have a bearing on the issue, the provision made for the pursuer in this case does not do so.

Facts

[63] In any event, I do not believe that the telephone conversation took place. I accept that the defender and the deceased remained on cordial terms but I do not believe the relationship continued in the way categorised by the defender. I believe that there was for a while continuing contact between the defender and the deceased and that this might have continued until some time after the deceased met the pursuer. I am of the view that contact diminished considerably after the pursuer came on the scene and from some time in about 1994 more or less ceased altogether, although I accept that it is quite possible that the deceased visited Courtney during the Christmas holiday of 1994. The bulk of the evidence suggests diminishing contact from 1993 and into early 1994. The defender's claim that there was continued contact right up until the birth of Daniel is simply not credible and is unsupported by any convincing detail. I think it is possible that at an earlier stage the deceased had asked for a reconciliation and had asked the defender to remarry him but not during the timescale described by the defender. In my view the defender has transposed these events to later dates to help support her case. Not only did the deceased marry the pursuer in March 1995, but at one point the context of the defender's evidence was that the proposal had come before the pursuer was pregnant with Caitlin who was born in July 1995.

[64] The evidence of the defender's parents as to ongoing contact was very vague. I do not think they were in any way seeking to mislead simply that their recollections are at fault and cannot be relied on after about 1992, particularly in relation to timing of events. Mrs Courtney thought contact stopped because "Ricky got a new life" which is consistent with it stopping soon after the pursuer came on the scene. At an early stage the defender herself said it stopped when the deceased met the pursuer (Fergus MacMillan's file note).

[65] As to the issue of legal advice tendered to the deceased by Philipa Snell I consider that she did tell both Fergus MacMillan and John Colquhoun that she had advised the deceased to make a will. Mr Colquhoun in particular was a careful witness and I do not for a moment think he would have written that the advice "had" been tendered if Mrs Snell had only suggested that it "might" have been. However, I also accept that Mrs Snell now has no recollection of doing so, that it would not, in the circumstances be her usual practice and that the pursuer has no memory of such aany such advice. thing either. That leads me to conclude that if any mention of a will had actually been made, it must have been a passing comment and no more.

[66] I consider that the various changes in the defender's position - whether the allegation that the deceased declined to make a will after the birth of his later children came from Mr Colquhoun or Mr MacMillan, when it came from neither; how many phone calls there were in late 1996; - are damaging to her credibility. I do not accept her evidence about the Safeway incident. I find it impossible to believe that she would not have mentioned the telephone call at a much earlier stage had it really taken place and I think it highly unlikely that such a conversation would have taken place anyway.

[67] Accordingly I will sustain the pursuers second plea in law, repel the defenders pleas in law and pronounce decree in terms of the first conclusion of the summons.

. She thought that the deceasedthey and defender continued to see each other. and She knew that when she bought Falcon Avenue the deceased had helped her to do it up Falcon Avenue, sanding floors and so on. This was about 1994. As for other examples of contact, she said "I was really out of the picture then." Any communication would be made to her work." The defender said told her of meetings which had taken place but she did not know how often this had happened". "He used to meet us sometimes, I think when Courtney was going to school, he would go to the school and they would walk down Morningside." Courtney started school in 1994. "I don't know on how many occasions this happened, quite a few I would think." She did not hear about contact from anyone else. The information she got came from conversation with the defender. The defender would say "Ricky painted that" or comment that when she needed thinks done he had been up to do them.

30.[330] Asked when the contacted ended she said, "Presumably when all the wee jobs were done". Later she said "Ricky just went on to get a new life for himself and things just drifted apart.".[1] Mrs Courtney did remember contact at the time when the floors were being sanded as happening about 1994 when Zachary was just a baby. The defender and the deceased remained friends and he. He phoned her from time to time and they saw each other . Asked when the last call was, she replied that her husband had taken the call. Sometimes the defender would speak to her to arrange for Mrs Courtney to arrange to take Courtney to see the deceased, for example when she took him swimming. She said she knows that the defender saw the deceased occasionally after 1994.. (Her evidence on all of this is just hopelessly vague and there does not remotely support the contention by the defender that there was frequently ongoing contact of a particularly friendly nature.) [2]Asked about contact stopping she said, "Ricky just went on to get a new life for himself and things just drifted apart." (That seems much more likely.) She did not know how often he had phoned.

31[341] She and her husband were very angry at the fact that the deceased never paid any maintenance for Courtney. However, the deceased could see Courtney any time he wanted to, even after 1994. She knew nothing about his moving to Falkirk.

In cross-examination she agreed that after the defender moved out the only knowledge that she had about contact was second-hand "except a couple of times I saw him or I met him when I took Courtney swimming", of which she gave examples.. The defender was very angry that he did not pay for Courtney, but this had no effect on the extent to which she let him see Courtney. She phoned Mrs Courtney's house a couple of times a year to get in touch with the defender from 1994 onward. She was not sure whether the deceased had the defender's number. She was x-directory at one point. He expected he would probably have had the defender's house telephone number. The defender did tell her that he had asked her to re-marry him but she did not know when this was. Mrs Courtney said shehad met him the deceased a couple of times in Falcon Avenue, once with when Zachary when he was a few months old., and . Sshe saw him at the Commonwealth Pool in about 1995.

32[352] The defender's father gave similar evidence to her mother as to the nature of the relationship. between them. It had come as a real shock when they divorced in 1987 and he was not surprised when the reconciled subsequently. After Courtney was born the same old problems arose "getting drunk and not paying bills". When she the defender returned to live with her parents the deceased still visited and they always looked happy together. He visited once a week or once a fortnight. When he moved to Yeaman Place he did not come to the house very often,. may be once a month. At least that was as often as Mr Courtney saw him, his wife perhaps saw him more often. When the defender moved toAt Falcon Avenue, in about 1994, the deceased did all the decoration. for her. The This decorating was in about 1994, the year Zachary was born. Mr Courtney saw him only once or twice after Zachary's birth, hHe did not see him the deceased after Zachary was about five or six months old. (Again his evidence on all of this is very vague.) The defender would say that Ricky had been up to the house or had taken Courtney or Zach out.talk about contatctcontact having taken place. He said that they all came to the Courtney's''s house at Christmas 1994 and the deceased had a present for Zach, as well as for Courtney.[3] (The pursuer disputes this, and I think she is right. However, that does not mean that they did not visit some time at Christmas 1994 and I consider that is a distinct possibility.) Mr Courtney saidHe he was under the impressionthough that the reason the deceased stopped visiting was that he had the visits stopped when the deceased moved to Falkirk. This was after 1994, but he could not be more precise. The defender would tell him when she got a call from the deceased. He called in the February before his death, saying he had been trying to contract the defender by phone and asking if she still had the same number. When Mr Courtney passed on the message, the defender said she did not want to speak to him. She thought she was upset about the CSA. During the previous twelve months he had taken one other call for the defender. He could not say if he had spoken in between. At no time had the defender stopped the deceased from seeing Courtney.. It was wrong to say that all dealings were through Mr and Mrs Courtney because he knew that the defender had spoken to the deceased after 1994. He said, "I don't know if he saw her after 1994". He was aware of a visit to Courtney which, from a photograph of Courtney, was when he was 61/2 or nearly 7. He was understanding that they had been in contact until 2003.

The last time he saw them together at all was at Christmas 1994. He agreed, in cross-examination, that after the deceased was involved with Arlenethe pursuer, face to face contact diminished.

33[363] Arlene Greenan gave evidence that she first became aware of the Will in about May 2003.,. The first time she was aware that this was being contested by the defender was at the beginning of December 2003. When wWhen she met the deceased she knew he had been married before and had a son. When theyAt first met he had sporadic access to Courtney, but she was not aware of access from about May or June 1993, from about . He saw Courtney's for his 4^th birthday. She did not have any suspicions that he was seeing them and not telling her and could see no reason why this should happen. It was possible but highly improbable or impossible. As to the averment that he was advised to make a Will and declined, he would never have done anything to harm the children, never mind intentionally disinherit them. He had no previous contact with Snell & Co until they were selling King Stables Road. As far as she was aware the issue of a Will was never mentioned at any time in the contact between Snell & Co and the deceased. It was certainly never mentioned at any meeting or conversation in which she took part. The deceased had never made any suggestion to herindicated that a Will had been discussed.

She herself had no recollection of was sure that Philippa Snell ever did not mentioning the making of a Will. and was sure about that. .

She had been aware of the CSA involvement in about 1994. She could see no reason why the deceased would make contact without telling her. The deceased worked on rigs her and abroad. He certainly made no mention of contact with the defender and she thought it highly unlikely, if not improbable or impossible, that he had seen her.

34[374] She also referred As to the Safeway incident, the . The deceased was in one aisle with Caitlin in the trolley, and the pursuer and Gilmore Macpherson were in another aisle. Hearing raised voices, they went back and found the defender shouting at the deceased. She stopped when she saw them.

When the file note, 7/7 and 7/8 of process, were put to her and the last paragraph of 7/1 of process, she simply reiterated that Philippa Snell did not mention making a Will to them. When the final papers for the purchase of the house were signed the deceased was in hospital.

The pursuer would not have been anxious had the deceased continued to see the defender and Courtney. They generally did not discuss that relationship, but on one occasion he had said it was not particularly healthy. She thought the implication that he was taking Caitlin to visit was simply a lie. She did not believe he ever met Zach.

35[38]35] By December 1994 they she and the deceased were engaged and spent Christmas together at her flat. T They had bumped into the defender's mother at the Commonwealth Pool early in 1993. She was aware of no other such incident. She had understood that the deceased had been paying maintenance for Courtney. In fact she was under the impression that in order to see Courtney he had to pay maintenance.

She would find it very surprising if a deceased had called the defender in December 1996.

He had never given any impression that he felt deeply for the defender. It seemed probable that he had asked the defender to reconcile in 1994 or to marry him in 1995. The pursuer and the deceased married on 31 March 1995. She could only presume that the deceased thought the Will became invalid on their subsequent marriage.

36[396] Gilmour Gilmore Macpherson also gave evidence saying he was a friend of the deceased for over 20 years. They were best friends. He recalled the Safeway incident. He and the pursuer were in one lane, the deceased and Caitlin in another. , when Tthey heard the defender's voice talking in a loud manner.

When they walked round she stopped. There was also a security guard coming towards them because there was a noise.

37 He[4037] He was not aware of his the deceased keeping contact with the defender after his relationship with the pursuer had started and was confident that he would have been aware of that, even had the deceased wished to keep it from the pursuer. They were the closest of friends. Even had the deceased wished to keep it from the pursuer,.

 

Submissions in law

General

[4138] On the general principles which apply, counsel were in basic agreement.

Reference was made by both to the treatment of the conditio in the Stair Memorial Encyclopaedia Vol.25, paragraphs751-754, where it is pointed out that:

"The principle applies when a testator has made a Will which contains no provision for children who may subsequently be born to the testator. If children are born after the date of execution of such a Will, it is presumed that the testator did not desire his Will to remain in effect in the altered circumstances; unless the presumption can be rebutted, the Will is revoked and the result is usually intestacy."

The principle

"... is not one of automatic revocation of a Will ... Instead it is a presumption for the benefit of the after-born child and based on equitable principles."

The presumptionIt

"....may be rebutted by clear evidence that the testator intended his Will to be effective, notwithstanding the subsequent birth of a child."

At paragraph 753 it is observed that:

"The mere fact that a long time elapses between the birth of a child and a date of the testator's death does not overcome the presumption in favour of revocation."

It is further suggested that:

"... however long a testator may have had to consider whether he wished his Will to remain in effect, the court will not accept this by itself as evidence rebutting the presumed intention to revoke."

[4239] Counsel for the defender submitted that the passage of time is nevertheless significant as one of the circumstances to be taken into account. Counsel for the pursuer emphasised that the presumption could only be rebuttted by "clear evidence".

Relevancy

[430] The arguments on relevancy anticipated at the outset by Mr. Sandison became redundant since (a) it was accepted by Mr. Kinroy that the averment that the deceased had "declined" to make a will had not been established in evidence; (b) that unless the evidence of the telephone call of November 1996 were accepted there would be insufficient in the case to rebut the presumption since the passage of time alone was insufficient; and (c) that the evidence relating to the nature of the relationship between the defender and the deceased was only relevant to the extent that it lent context and credibility to the defender's account of the telephone call.

 

Admissibility

[441] A large part of the submissions therefore turned on the admissibility or ootherwise of the evidence relating to that telephone call.

Defender's Counsel
[452] Counsel for the defender referred to Elder's Trustees v Elder (1894) 21 R. 704 where Lord Adam, at p.708, noted that in an earlier case

"... the court held that whether revocation of a Will by the subsequent birth of a child was to be implied or not, was entirely a question of circumstances. That being so, it appears to me that a birth of a child affords only a presumptio juris that the testator does not thereafter intend the Will to remain valid.

The presumption will be aof varying force according to the circumstances of the case, and may, like any other presumption of law, be rebutted by evidence of contrary intention. But if there be no evidence of any contrary intention, it appears to me that the presumption must prevail."

In the same case at p.709, Lord Kinnear said that the presumption "... may be rebutted by evidence of contrary intention" noting that:

"the force of the presumption may depend upon the circumstances of each particular case. I therefore agree with Lord Adam that the true principle is this, that the subsequent birth of the child raises the presumption of revocation, - that the inference which the law requires us to draw from that single fact may be rebutted by the inference of a contrary intention, which may be deduced, if so be, from other facts and circumstances; that in the absence of evidence to the contrary the presumption must hold."

In that case a proof was not required since no party was seeking to lead evidence to rebut the presumption. However, Lord Kinnear noted that:

"... if we were asked to allow a proof of fact tending to shew that the testator did not intend to revoke the Will, - tending to set aside the presumption of law, - then it would be quite right and necessary that all relevant facts on the other side should be admitted to subrogationprobation also."

Counsel submitted that the evidence of the type which he sough to rely on was not excluded by anything which was decided in Elder's Trustees. Lord Kinnear's opinion appeared to envisage that where evidence to rebut the presumption were offered, evidence to fortify it would be equally admissible. A sentence in paragraph 833 of volume 25 of the Stair Memorial Encyclopaedia, that in cases of revocation of a will by the birth of a subsequent child, evidence of testamentary intention was admitted "in support of the will but not against it" was to that extent incomplete. The case of Elder was silent on the nature of the evidence which might be admitted. Counsel submitted that it would be competent, either to fortify or rebut the presumption, to lead evidence of the testator's intention, including both written and parole declarations.

[463] Counsel made this submission cognisant of the passage in Green's Encyclopaedia, Vol.4, para.756 which states that:

"If the testator has indicated clearly, either in his settlement or otherwise by writing, that his omission to provide for his children was intentional, the conditio will not apply. Thus, if after the birth of children who were born subsequent to the date of the settlement, it is established that he treated the deed as still effectual, or made a codicil or deed in relation to his disposition of his estate in the Will, the presumption will be rebutted. Not only probative deeds but memoranda or letters under the hand of the testator may be referred to in order to ascertain his intention in this matter; but it is not competent to prove, by parole, declarations of the testator's intention, either of as setting up the Will or as fortifying the presumption against its subsistence."

Counsel noted that the statement that parole evidence of declarations was incompetent bears to be vouched by McKie's Tutor v McKie (1897) 24R 526 but in counsel's submission that case did not vouch thatthe proposition. He suggested that tThe source for it was in fact Rankine v Rakine's Trustees (1904) 6F. 581 in which a distinction was made between parole evidence and writing. Lord McLaren at p.583, discussing circumstances which might displace that presumption, said

" I sympathise very strongly with the observations made by Lord Rutherfurd-Clark in the case of Dobie, that such circumstances, in order that they may have decisive weight, must be evidenced in writing, but not necessarily by a formal deed, because there might be memoranda or letters under the hand of the testator showing clearly that he had considered that the Will made before marriage was operative, or that he had not considered it operative. In the present case we have no such evidence in writing, and parole evidence has been held in previous cases to be insufficient to displace the presumption of revocation."

Counsel submitted that these comments were obiter and that parole evidence may be sufficient to rebut the presumption. There was no justification for a distinction between parole evidence and writing.

[474] He proceeded to the comments of Lord Rutherfurd-Clark in Dobie's Trustees v Pritchard (1887) 15R. 2, at p.4, where heis lordship greatly doubted whether the Will could be set up

"... by the mere surviving of the maker without executing a subsequent deed[4] ... I am much inclined to the opinion that the revocation was absolute, and that, even had the maker survived the birth of the child for a long time, the Will could receive no effect. I doubt whether survivance, however long, would justify us in holding that a wish was implied that the Will should receive effect."

[485] He then referred to Smith's Trustees v Grant (1897) 35 S.L.R.129, where Lord Stormonth-Darling observed that:

"... the case of Elder's Trustees and the comments of Lord McLaren upon it in the case of McKie are conclusive against the competency of any proof of declarations of intention either of setting up the Will or as fortifying the presumption against its subsistence."

However, Elder's Trustees made no observations as to the nature of the evidence which would be competent so Smith's Trustees proceeded on a misreading of that case[5]. Moreover, Smith makes no distinction between written declarations as opposed to parole declarations.[6] Counsel then turned to the case of McKie's Tutor v McKie (1897) 24 R. 526 in which Lord Adam at p.528 said that the presumption

"can only be rebutted by proof of facts and circumstances shewing that the intention of the testator was that the Will should stand".

Counsel submitted that parole declarations would come within the definition of "facts and circumstances showing that the intention of the testator was that the Will should stand". Lord McLaren, at the same page, said:

"The case of Elder is important in this connection, as it settled this point, that the court will not allow proof of declaration of the deceased as either setting up the Will or as fortifying the presumption against the subsistence of the Will. For in that case the Lord Ordinary had allowed a proof, but the interlocutor was recalled by the Inner House, and judgment was given upon the known and undisputed facts appearing on the Record."

[496] Counsel submitted that these comments of Lord McLaren were not a correct analysis of Elder's Trs which did not vouch this proposition, which in turn also weakened the decision in Smith since it specifically proceeded on the basis of these comments.

[5047] In McKie Lord McLaren goes on to say:

".... It rather appears to me that the presumption can only be displaced by something that amounts to a tangible and clear expression of the testator's wish that his Will should subsist, e.g., by his executing a codicil to it, or by his taking measures of precaution shewing that he treated his will as a subsisting document................. for example, if the testator had taken great care to preserve his Will, or had made some written reference to it after the lapse of years from the birth of a child."

[5148] Counsel then referred to Milligan's Judicial Factor v Milligan 1910 S.C.58 at p.61 in which Lord Lowe suggested that had a Will been retained by the testator and later given by him to his law agent for preservation after the birth of his child, that might have been a significant circumstances in favour of the Will. Counsel suggested that the comments allegedly made by the deceased to the defender would come into the same category. Finally, Counsel referred to the case of Adamson's Trustees v Adamson's Investors 1891 18 R.1133 at 1137 where the Lord Justice Clerk considered that trust in a surviving parent to provide for the children from the inheritance was a relevant factor.

 

Counsel for the pursuer

[5249] Counsel for the pursuer agreed that Elder's Trustees decided nothing one way or another on the admissibility of declarations of intent. So far as McKie is concerned, counsel could not say that Lord McLaren was correct in his characterisation of the case of Elder's Trustees at p.528. However, great weight ought to be attached to the fact that this is an opinion of Lord McLaren, and it relatesrelating to Wwills and succession. He does not express surprise at the notion that oral expressions of intent would be inadmissible. Moreover, he goes on himself to refer to tangible and clear expressions of intention and the only examples he gives are those of writing or of actions at p.528 and at p.529. Furthermore, his opinion in McKie was concurred in by Lord Kinnear, who gave the lengthy Oopinion in Elder. Counsel submitted that Oral utterances would not be constitute examples ofr clear and tangible expressions would not be constituted by oral utterance of viewsintent. Such a position is entirely consistent with the general law on revocation of Wills. A will can only be made in writing and equally can only be revoked in writing or by acting in a way which is inconsistent with the intention that the Will should continued, for example by destroying it or by making substitutions in it. It is therefore natural to say that one is looking for writing or for actions inconsistent with the Will in order to rebut the presumption.

[530] No oral declaration one way or the other was admissible. Counsel then referred to Stewart Gordon's Trustees v Stuart Gordon 1899 1F.1005, one of the few cases in which the presumption has been successfully challenged. In that action, however, there was both action and writing because the testator, in the full knowledge of her pregnancy and in contemplation of the possibility of her death, recognised and adopted a pre-existing Will as the settlement which was to regulate her succession. This was therefore an expression of intent that was both clear and tangible. Counsel relied on the passages quoted above from Rankine v Rankine's Trustees and drew attention to the Opinion of Lord Kinnear at p.584 where he stated:

"It is enough that it is quite settled in our law that the birth of a child operates to revoke all previously executed Wills, unless something is done by the parent to set up the Will."

Counsel submitted that the content of the telephone call in question could not in any circumstances be regarded as the steps taken to preserve the Will ofr the type referred to in certain cases. Furthermore,I in itself, lapse of time tells us nothing unless we have a without areason for it since it could equally be procrastination as deliberate intention. R Reference was also made to Rankin v Rankin's Tutor (1902) 4F 979 and Knox's Trustees v Knox 1907 S.C. 1123.

 

Facts

Defender's Counsel

[541] Turning to the facts, counsel submitted that the case turned on whether the deceased intended his Will of 1989 to be the final expression of his testamentary intention. One had to look at the whole circumstances relevant to that question. He relied to a greater or lesser extent on five specific issues, namely: (1) the telephone conversation with the first defender in December 1996; (2) the nature of the relationship between the deceased and the first defender which lent credence to the call having taken place; (3) the evidence that Pippa Snell suggested to the deceased, after the birth of his last child, that it would be wise or sensible to make a Will, and that she did so on more than one occasion; (4) the fact that the deceased had made some provision for the pursuer by nominating her as the beneficiary of certain policies; and (5) the passage of time during which period the deceased neither revoked the Will nor made a new one.

[552] The case critically depended on the first defender's evidence that the deceased said what she claimed he did in the telephone conversation in December 1996. If that were inadmissible the presumption could not be rebutted. Equally if she were disbelieved on that point the presumption could not be rebutted.

[563] Counsel took into account the nature of the evidence from Pippa Snell, which he acknowledged did not extend either to urging the deceased to make a Will or to his declining to do so. However the fact that he knew where the Will was and referred to it in the telephone conversation, coupled with Pippa Snell's suggestion, and his inactivity and the passage of time amounteds to enough to rebut the presumption.

[575] The nature of the relationship after the separation is important to make acceptable the evidence about the statement in the phone call, which otherwise would be difficult to accept. Counsel invited me to hold that the remark was made, that the inference was that the deceased felt guilty about not paying maintenance for Courtney, and that factor, coupled with this very strong feeling for the defender, induced him to say what he did. The timing of the remark iswas critical since it was after the birth of the youngest child. It should be held that it indicates that he wished the Will to remain in force.

[585] He submitted that the first defender was a witness of credit, although her evidence was occasionally confused regarding dates and was confused, or indeed simply wrong, about what she understood Fergus MacMillan had told her about his conversation with Pippa Snell on 13 November 2003. However, she had no difficulty pinning the conversation regarding the Will to the end of 1996, just after the birth of Daniel, and she should be accepted as credible, reliable and sincere. Counsel relied on the evidence of continued contact, in person and then by phone, until shortly before the death and suggested that the pursuer had simply not known about it.

[59] As to the incident in Safeway's in Morningside, and the subsequent telephone calls, the defender was unsure as to how many telephone calls there were but submitted that this was not a significant matter given her specific recollection of the critical call. He invited me to accept the defender's account of what took place in Safeway's or at least to conclude that the truth was somewhere in between.

. Her evidence in general was supported by that of her parents. Her mother knew that the deceased had proposed re-marriage, evidence which came out almost by accident.

[6056] The defender's mother was described as a credible and reliable witness, not one who was anxious to speak on her daughter's behalf at any cost. Her evidence supported continuing contact until 1995 and she also said that the defender told her [61] Arlene Green's evidence that the deceased had not had contact with the defender and Courtney after May or June of 1993 was contradicted by other evidence, which suggests that she did not know all that was going on. She was adamant that it was never suggested by Pippa Snell that they should make a Will, but other evidence suggests that this did indeed happen.

[62] It was not difficult to sympathise with Mrs Snell being asked to remember what she said in 1997 and for the first time about six years after the event. In examining the documents it might appear that Mrs Snell was not utterly punctilious in the care that she took. For example, 7/1 of process contains a representation that she did not know about the defender until late 2003, but she did in fact know by

April 2003. She had the pursuer complete the inventory for confirmation in an unfortunate way. She was very concerned to correct a notion that she pressed the deceased to make a will. There is a very sharp contradiction between herthe evidence of Mrs Snell and that of Fergus MacMillan and John Colquhoun,. It is hard to see how both Fergus MacMillan and John Colquhoun could make the same mistake. Mrs. Snell's evidence was also inconsistent with her own letter 7/1 of process. as well as her own letter of 7/1 of process. Since 2003 she has become preoccupied with rebutting the notion that she urged the deceased to make a Will. It is hard to see how both Fergus MacMillan and John Colquhoun could make the same mistake.

 

Pursuer's Counsel

[6357] Turning to the facts cCounsel considered it significant to draw attention to the way in which the defender's case had been presented on Record, regarding advicethe averment that the deceased had declined to make a will. form Mrs. Snell. This averment could not be sustained as true and counsel for the defender did not suggest that it could be. Counsel then traced the history of the averment, suggesting that the way in which it came to be on record was damaging to the defender's credibility. The action was raised in 2004 and at a motion for summary decree in July 2005, this sentence was identified as the only one which would justify refusal of decree. The defender was ordained to produce affidavits showing the basis of that sentence. She produced affidavits from herself, Mr Fergus MacMillan and Mr John Colquhoun. The defender's own affidavit said that in the letter of 19 November 2003, Mr Colquhoun "used an expression which I take to mean that Philippa Snell has told him that she discussed making a new Will with Richard Greenan but that he had declined to do so." That letter has not been produced, but what the defender said in her affidavit cannot have been the case. Mr Colquhoun's had no idea when any such advice might have been given. Counsel recognised that had there been such advice it must have been after the children were born, but it was critical that the pursuer could have had no idea of the time at which any advice might have been tendered, since the file of Philippa Snell was not lodged until late 2006. More significantly, theMr. Colquhoun's letter of 19 November could not have provided any basis for an averment that the deceased had declined to make a will, as . John Colquhoun himself entertained no such view. In her evidence, changing her position, the defender said it had not come from that letter, but was a result of something which Fergus MacMillan had said to her. However, but Fergus MacMillan denied that any such conversation had taken place nor would he have had any basis for saying such a thing. It is clearly accepted now that that conversation did not take place.

[64] Counsel submitted that these changes of approach on the part of the defender were damaging to her general credibility.

[6585] However, there remained the substantive issue of whether as a matter of fact Philippa Snell ever suggested to the deceased that he should make a will or that it might be sensible to do so. Three sources suggest she might have mentioned a Will: the file note by Fergus MacMillan; the file note by John Colquhoun; and her own letter to the Law Society. Each of these indicateThe evidence suggested that if advice wasere given, it was given to both the deceased and Arlene Greenan,. Arlene Greenan who was clear in her evidence that no such advice was given to her. If it was not given to her it was less likely that it was given to the deceased. Furthermore, there is nothingNor is there anything in the file file anywhere even mentioning a Will. If the making of the Will was canvassed, it must have been in one of these recorded points to suggest that such advice was given. of contact. It seems unlikely if such a mention was made it was not recorded anywhere. Counsel submitted that it was thereforeIt would be difficult to conclude difficult to find it more likely than not that such advice was given far less that it was given on repeated occasions.repeatedly.

[6659] Counsel accepted that Philippa Snell could not exclude the possibility that she might have mentioned the making of a Will to Richard Greenan, but she had no recollection of doing so, and would not normally do so in the context. John Colquhoun accepted that, having seen the earlier file note, it was quite possible he was expecting to hear what Fergus MacMillan heard, and that it was possible that some of the file notes contained his words not Philippa Snell's. Counsel submitted that it was even possible she had said she "might" have advised the making of a Will rather than that she "had".[7] The real issue is whether such advice was given and counsel's submission was that it was not. However, even if she did suggest it, the deceased's failure to do anything about it does not amount to clear and tangible evidence of setting up the Will.

[67] Much of the evidence about the nature of the relationship, was exaggerated, and w. The degree of ongoing closeness claimed was difficult to reconcile with the known objective facts which includedincluding an early separation, a subsequent separation followed by divorce after three years of marriage and the deceased's subsequent remarriage. There were nNumerous aspects of the evidence in general which undermined the credibility of the defender.: These were the dispute about the Safeway incident, the allegation that Fergus MacMillan told her that Philippa Snell had pressurised the deceased to make a Will, and the fact that the defender herself had previously told Mr MacMillansaid that contact virtually stopped after Arlene Greenan came on the scene. (a position she has since departed from) and Gilmore McPherson's evidence that he would have been likely to have been aware had the deceased continued to see the defender. All of this makes it unlikely that the evidence regarding ongoing contact is substantially true. The contact diminished quite rapidly after Arlene Greenan came on the scene and in the last seven years or so amounted to no more than a couple of calls a year routed through her parents. (I accept this view of the evidence). It is highly unlikely that the deceased intended the bulk of his estate, including part of the matrimonial home to go to his ex-wife.

 

[680] So far as the telephone call is concerned, counsel's main point was that it was inadmissible. In any event, he submitted that it had not taken place. It is clear that in 2003 the defender was told verbally and in writing in what seems to be considerable depth and at some length that the issue facing her in respect of the Will was whether the deceased intended that Will to remain in effect notwithstanding the birth of Caitlin and Daniel. Any reasonable lay person must have appreciated a soon as the issue was explained to her that the call was potentially of great significance, yet it was not until July 2005 in the context of her having been ordained to produce the affidavits, that mention of the telephone call was made for the first time in paragraph 3 of her affidavit. There is repeated modification of the defender's evidence when the spotlight is placed on it. Counsel submitted that the alleged content of the telephone call was highly unlikely and submitted that the conversation simply did not take place. There was either no call or if a call was made about maintenance, no comment of this type was made. In the whole context of lack of contact and the deceased's new life, such a call was highly unikely. Nor is it believeable that the defender would not have mentioned it earlier if true.

 

Discussion

Admissibility

[691] I accept that once evidence is offered to rebut the presumption evidence to fortify it must equally be admissible. However I do not consider that parole evidence of the kind relied on by the defender in this case is admissible. None of the cases relied upon by the defender relates to the admission of parole evidence and where opinions are expressed about the matter generally they are against the admission of parole evidence. There is a clear expression of opinion from Lord MacLaren in Rankine which does not solely refer to his agreement with Lord Rutherfurd Clark in Dobie. In McKie it is correct that Lord MacLaren proceeds on a view of Elder's Trs which is not apparent from the face of the report in that case. However, it seems to me an important consideration that in the same case he states separately that the presumption can only be displaced by something which amounts to a "tangible and clear expression of the testator's wish", going on to provide examples which are not consistent with the notion that parole evidence is sufficient. Smith's Trs does seem to proceed on a misreading of Elder's Trs but it remains consistent with McKie. Accordingly I conclude that the evidence as to the alleged telephone call is inadmissible.

[62] Whilst I an see that the nature and extent of other provision for after-born children may have a bearing on the issue, the provision made for the pursuer in this case does not do so.

Facts

[7063] In any event, I do not believe that the telephone conversation took place. I accept that the defender and the deceased remained on cordial terms but I do not believe the relationship continued in the way categorised by the defender. I believe that there was for a while continuing contact between the defender and the deceased and that this might have continued until some time after the deceased met the pursuer. I am of the view that contact diminished considerably after the pursuer came on the scene and from some time in about 1994 more or less ceased altogether, although I accept that it is quite possible that the deceased visited Courtney during the Christmas holiday of 1994. The bulk of the evidence suggests diminishing contact from 1993 and into early 1994. The defender's claim that there was continued contact right up until the birth of Daniel is simply not credible and is unsuppoted by any convincing detail. I think it is possible that at an earlier stage the deceased had asked for a reconciliation and had asked the defender to remarry him but not during the timescale described by the defender. In my view the defender has transposed these events to later dates to help support her case. Not only did the deceased marry the pursuer in March 1995, but at one point the context of the defender's evidence was that the proposal had come before the pursuer was pregnant with Caitlin who was born in July 1995.

[64] The evidence of the defender's parents as to ongoing contact was very vague. I do not think they were in any way seeking to mislead simply that their recollections are at fault and cannot be relied on after aout 1992, particularly in relation to timing of events. . Her motherMrs. Courtney thought contact stopped because "Ricky got a new life" which is consistent with it stopping soon after the pursuer came on the scene. An early stage the defender herself said it stopped when the deceased met the pursuer (Fergus MacMillan's file note).

[7165] As to the issue of legal advice tendered to the deceased by Phillipa Snell I consider that she did tell both Fergus MacMillan and John Colquhoun that she had advised the deceased to make a will. Mr. Colquhoun in particular was a careful witness and I do not for a moment think he would have written that the advice "had" been tendered if Mrs. Snell had only suggested that it "might" have been. However, I also accept that Mrs. Snell now has no recollection of doing so and that the pursuer has no memory of such a thing either. That leads me to conclude that if any mention had actually been made, it must have been a passing comment and no more.

[7266] I accept that the defender and the deceased remained on cordial terms during this period but I do not believe the relationship continued in the way categorised by the defender once the deceased met the pursuer. I think it is possible that at an earlier stage the deceased had asked for a reconciliation and had asked the defender to remarry him but not during the timescale described by the defender. I consider that the various changes in the defender's position - for example as to the reason for the appearance on record of whether the averment allegation that the deceased declined to make a will after the birth of his later children came from Mr. Colquhoun or Mr.MacMillan, when it came from neither; how many phone calls there were in late 1996; - are damaging to her credibility. I do not accept her evidence about the Safeway incident. I find it impossible to believe that she would not have mentioned the telephone call at a much earlier stage had it really taken place and I think it highly unlikely that such a conversation would have taken place anyway.

[67] Accordingly I will sustain the pursuers XXXXXX second pleas in law, repel the defenders pleas in law and pronounce decree in terms of the ZZZZZZZZZZZ first conclusion of the summons.

Mr Macpherson felt he would have been aware.