Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 45
A94/12	OPINION OF LORD DOHERTY in the cause LESLEY ANNE JOLLIE Pursuer; against (FIRST) JOHN ASHER LENNIE as an individual and as executor and trustee of the late Margaret Watt Dobie or Jollie or Lennie; (SECOND) KIRSTYN MARGARET O'BYRNE; (THIRD) EWAN RODERICK WILDER LENNIE; (FOURTH) S as mother and guardian of D and N, children of the late Malcolm Alexander Jollie; (FIFTH) DOREEN SHERRAT Defender: ________________

Pursuer: Macpherson, solicitor advocate; Simpson & Marwick

First Defender: Hastie; Warners LLP

6 March 2014

Introduction

[1] The pursuer is the daughter of the late Mrs Margaret Watt Dobie or Jollie or Lennie ("the deceased") who died on 31 March 2010. In this action she seeks to prove the tenor of a handwritten will said to have been subscribed by the deceased on 16 November 2004 ("the November will"). The first defender was the deceased's husband at the time of her death. The deceased had executed a formal trust disposition and settlement on 13 October 2004 ("the October will"). The October will appointed the first defender executor and trustee on the deceased's estate. The first defender and the second to fifth defenders are potential beneficiaries in terms of the October will. Only the first defender lodged defences. The matter came before me for a proof before answer.

The background

[2] Much of the evidence was not in dispute. The deceased's first marriage had been to Alan Jollie. There had been two children of that marriage, the pursuer and her brother the late Malcolm Alexander Jollie (who died on 8 July 2008). The pursuer was aged 46 at the date of the proof. Malcolm had been two years younger than her. The marriage had broken down in 1981 or 1982 and the deceased and Mr Jollie had separated. They were divorced in 1984. Before the separation they had lived together at 63 Thomson Road, Currie, Edinburgh. The property had been jointly owned by them. Following their separation it had been sold. In about 1983 the deceased had bought a flat at 63 Balcarres Street, Edinburgh. She had lived there. Her relationship with the first defender had begun in about July 1984. He had been married before and had three children (the second and third defenders and Alastair Lennie). They had got engaged in late 1985. She had moved in to the first defender's home at Fair-a-Far, Cramond in 1985. She had worked for a building society and had access to employee loans on favourable terms. Funds had been borrowed by her from the society for work on Fair-a-Far and the property had been disponed to the first defender and her as joint proprietors. They had married on 14 February 1986. They had sold Fair-a-Far and the deceased had sold 63 Balcarres Street. They had bought a house in Barnton and they lived there together until the deceased's death. Title to the house had been taken in joint names, and the disposition had contained special destinations by each of them in favour of the survivor.

[3] Malcolm Jollie had married the fourth defender in May 1995. They had had two children, N (born in 1992) and D (born in 1996). The pursuer had not married. She lived with her partner. They had one daughter, born on 26 June 2010.

[4] The October will appointed the first defender as her trustee and executor in the event of him surviving her for 28 days (clause (1)). In the event of the first defender so surviving, part of her estate (up to a maximum value of the upper limit of the nil per cent rate band for inheritance tax purposes) was to be subject to a discretionary trust (with the potential beneficiaries being the first defender, the second defender, the pursuer, and Malcolm Jollie); and the residue was bequeathed to the first defender (clause (5)). In the event of him failing to survive the deceased for 28 days, the pursuer and the second defender were to be her trustees and executors and the residue of her estate was to be paid to the pursuer, Malcolm, the second defender and the third defender equally between or among them (with the issue of any of them who predeceased the deceased succeeding per stirpes to their parent's share (clause (9))). Clause 13 provided:

"I direct the trustees to give effect to all (if any) testamentary writings made by me after the date hereof which are subscribed by me, however informal the same may be, and notwithstanding the same may not have been witnessed, if they be satisfied of the authenticity of the same."

[5] At the same time that the deceased executed the October will the first defender made a will making similar provision (viz the deceased was appointed trustee and executor in the event of her surviving him for 28 days, the same provision being made for a discretionary trust, with the residue going to the deceased; and in the event of the deceased not surviving for that period the residue was to be divided in the same way as in the October will). On the same day that they executed their wills the deceased and the first defender also executed a deed of evacuation of the special destination in the title to their home in Barnton. That deed, the October will and the first defender's will were all drafted by Legal Services Scotland, who carried on business as will writers.

[6] The November will is 6/1 of process. It is handwritten in pencil on both sides of a single sheet of A5 size paper. The sheet has one vertical fold line down the centre for its full length, and two horizontal fold lines across it (one at the mid-point on the vertical axis, and the other three quarters of the way down the page). The sheet is in a damaged state - six parts of it are missing. These are (as one looks at the first side) (i) the top right hand corner; (ii) nearer the middle of the top of the page a piece in the approximate shape of an inverted equilateral triangle with sides about 6.5cm long, one of the sides being in line with the top of the sheet; (iii) a further area in the shape of a right angled triangle, with a vertical axis of about 2cm along the left edge of the page and a horizontal axis of about 5cm along a fold in the page; (iv) from the right hand edge of the page, extending beyond the centre line, a banner/flag shaped area with a horizontal axis about 7.5cm long and a vertical axis of up to 2cm long, the base of the area being about 3-4cm from the foot of the page; (v) the bottom left corner (the approximate shape of a right angled triangle with a horizontal axis of about 3.5cm along the foot of the page and a vertical axis of about 5cm along the side of the page); (vi) a small triangular area comprising the bottom right hand corner of the page. Missing piece (i) is in the vicinity of the top of the vertical fold. Missing piece (iii) is in the vicinity of the central horizontal fold. Missing piece (iv) is in the vicinity of the lower horizontal fold.

[7] On the first side, near the top right hand corner, is part of a date "16/11/". The remainder of the date would have been on missing piece (i). The rest of the will reads as follows (I indicate in brackets where parts of the text are indecipherable, or difficult to decipher, or are missing).

"To whom it may [missing piece (ii)]

I , Margaret Watt [Missing piece (ii) intervenes but just on its left edge the bottom part of a letter is visible: it resembles the base of a capital "J". On the other side of the gap, about 4cm after that letter, is the end of a word and a closing bracket. Two of the word's letters are visible. The final letter is "e". The penultimate letter could be an "i" but there is no dot visible] e) d.o.b. 5:9:39

hereby make my [indecipherable, then missing piece (ii)] Testimony.

To my daughter Les[missing piece (ii)] Anne Jollie + my son

Malcolm Alexander Jollie equal shares of

any monies which I hold. To my daughter

Lesley I bequeath my platinum wedding band

[missing piece (iii) and part of a letter or a numeral] stoned diamond + white gold

[missing piece (iii) but most of the letters "engag" are discernible and, a few centimetres to the right, the base of what may be a "g"] also my 3 stoned twist diamond

ring. To Malcolm I bequeath my cultured pearl

necklace and all gold chain necklaces that I have

including a gold St Christopher + horn of plenty+ my grandmother's gold wedding ring.

To Malcolm my Heriots Plaque and pen stool + 2 [three words in very small print which are unclear and which neither party ventured to decipher]

My share of the house to be passed to my children

[missing part (v)]ley + Malcolm whosoever doesnt marry shall stay in it until they do or die. [There follow bequests of crystal and china and missing piece (iv)]

[missing piece (v)] the man I was married to for almost

[missing piece (v)] him to care for the two children he gave

[missing piece (v)] + I hope that he can give them all the [the first part of a word is discernible, possibly beginning with "l" before missing piece (vi)]

and time he can [missing piece (vi)]

[on page 2 , reverse of missing part (i)] he does [reverse of missing piece (ii)] any of his relatives to [reverse of missing piece (ii)] oved children.

He I hope will [reverse of missing piece (ii)] to his death

remembering that [reverse of missing piece (ii)] because of him

I have no wish to [reverse of missing piece (ii)] anymore. I can

never forgive him for what he has put

me and my children through. I gave him all

I had, all my love + now my life and he

wasn't worth it. I pray to God my children

will be happy, they are too [either a letter or part of a letter follows which could be either a "u" or the top part of a "y" then reverse of missing piece (iii)]

at present but I feel I have been [reverse of missing piece (iii)]

+ cannot allow myself to destroy my children.

[reverse of missing part (iv)] mercy and forgive me but I cannot

[reverse of missing piece (iv)] being loved and wanted each day I am

[reverse of missing piece (iv)] ldren I love them so [reverse of missing piece (iv)]

make them happy [illegible then reverse of missing piece (iv)] to be with my [reverse of missing piece (v)]

father + my beloved family who I loved so dea[reverse of missing piece (v)]

signed Margaret Watt [reverse of missing piece (v)]

D L Reid 16/11/04 (ne[reverse of missing piece (v), followed in the next line by the reverse of missing piece (vi), several faint words which are indecipherable, and Mrs Reid's address under her signature. To the right of that is the reverse of missing piece (v)].

[8] It was common ground that the November will had been written and subscribed by the deceased and that it bore to have testamentary effect. It was not accepted that that subscription had been on 16 November 2004. It was not accepted that Mrs Reid had witnessed the deceased's subscription.

The evidence relating to the contentious issues
The pursuer's case
The pursuer
[9] The pursuer is a primary school teacher. She indicated that during the first few years of the deceased's marriage to the first defender the deceased had been very happy. However, the deceased had then started to get upset that the first defender put his own children before her children. She had been expected to work and do all the household chores. She began to feel that she didn't have a voice in the marriage - that the first defender gave priority to his pursuits (which included bowling and watching football) and gave her little consideration. He would "stone-wall" her when she asked that they do things together or go places together. When the deceased had retired in 2001 or 2002 things had got worse. The first defender had insisted that she give up her car. As a result the deceased had felt that she lost a lot of her independence. The pursuer recalled the deceased and the first defender speaking to her in October 2004 about wills they had had drawn up by will writers. The first defender had done most of the talking. He had said they had written "mirror wills"; if either of them died the other would be able to live on in the house; that if the deceased died her share would go into a trust fund for her children. He had emphasised that "no-one could touch it". He had said that the pursuer and the second defender were to be the executors. He said he had done the same in his will for his children. The deceased had said she was very happy because she was getting what she wanted. She wanted her share to go to her children. She wanted to be sure that they would be looked after. There had also been some discussion with the pursuer about what was to happen to the deceased's rings.

[10] In February 2005 the pursuer went on a mid-term holiday to Tenerife. In early February she had been visiting the deceased at her home. The pursuer and the deceased had gone to the deceased's bedroom to see if the deceased had any clothes which the pursuer might want to take on holiday. They had been having a conversation "about the deceased not being very happy about things" with the first defender. He put his daughter, the second defender, first. The deceased had wanted to make sure that her children were all right because her children were important to her. She wasn't very sure about the will which had been written by the will writers. While they were in the bedroom the deceased had taken a handbag out of a wardrobe. She had taken the November will out of it and had given it to the pursuer. The pursuer had asked her what it was. The deceased had put her fingers up to her lips and had told her to look at it. She had said it was to make sure her children were looked after. The will had been folded into quarters. It was on Basildon Bond type A5 size paper. It was whole - it wasn't damaged. It appeared new. The pursuer didn't unfold it or read it at that time. She put it in her handbag and took it home. She read it that day or the next day. Then she put it back in her handbag. That was her "safe place" for things. It had remained there. She used the handbag every day for about two years until it disintegrated. When she stopped using the handbag in 2007 she had taken will out and put it in her filing cabinet - in a hanging file. She saw then that it was damaged. It had been loose in her bag at times. At other times it had been inside her EIS diary. Later, when she had moved out of her home she had put everything - including the contents of the filing cabinet - into boxes. Later still, in early 2009, she had moved home again and the contents of the boxes had been emptied and put back in the filing cabinet. She now believed that at that time she had put the will in a poly-pocket with her Canadian birth certificate. The will may have sustained more damage when in the hanging file or when being transferred to and from a box, but she did not think any further damage would have been done after it was in the poly-pocket. Throughout the period since she had read it, it had been folded.

[11] When the deceased had died the pursuer had been seven months pregnant. It had been a very difficult pregnancy. Her understanding had been that on her mother's death the deceased's "share" was to go into a trust fund for her children but that the first defender was to live in the house until his death. She had not expected to get anything apart from the deceased's rings until the first defender died. However, some months after her mother's death she had received a letter from the first defender's solicitors asking if she was prepared to sign a deed of variation of the deceased's will so that her whole estate could pass to the first defender. She had become distressed. She had obtained a copy of the October will and had been surprised to find that it did not contain the provisions she had expected. She searched for the will her mother had given her. She was unable to find it. Eventually, on 8 November 2011, she had found it. She had gone to the files to get her Canadian birth certificate and when she had unfolded that she had found the will inside it. She had unfolded the will and had read it again.

[12] From her reading of it in February 2005 she recalled that the missing part of the date on the top of page 1 was "2004". After the words "To whom it may" there had been the word "concern". Immediately after the word "Watt" had been the words "Lennie nee Dobie". The surname "Jollie" had not been written there. She recalled that the words "last will and" were before the word "Testimony". Her name, Lesley, had been written in the following line. The platinum wedding band bequeathed to her was the one the first defender had given to the deceased in 1996. Before the words "stoned diamond and gold" there had been "and my 3". After the words "3 stoned diamond and gold" there had been the words "engagement ring". That ring had been given to the deceased by her Aunt Maisie. The deceased and the first defender had had it reset in 1985 and had used it as an engagement ring. The 3 stoned twist diamond ring had been given to the deceased by her mother at the time of the latter's death in 1998. The "grandmother's gold wedding ring" had only come into the deceased's possession at that time. The deceased's signature at the foot of page 2 had been "Margaret Watt Lennie". After her name, and in line with it, had been the date "16/11/2004". Below that there may have been "nee Dobie" or "nee Jollie": she was unsure. When she saw the will in February 2005 Mrs Reid's signature, address and the date 16/11/04 had been on it.

[13] In cross-examination the pursuer indicated that when she had transferred the will from her bag to a file it was still folded, but she had seen that it was damaged and that two corners were missing. She had not mentioned this to the deceased. She had also had another note the deceased had written. The deceased was a very emotional person and the pursuer had just thought she was being over-cautious and emotional in writing what she had in the November will. She said that the deceased and her first husband had not been happy together latterly. They had argued a lot. She didn't think her father's affair with another woman had begun until after the separation. The deceased was an anxious person and she found the separation difficult. While she had been happy with the first defender at first, latterly she had not been. She had talked about wanting to leave. She had attended counselling to try and cope with the situation. She took medication for anxiety and depression. When Malcolm had committed suicide the deceased had just seemed to withdraw into herself. She had just given up. The deceased had asked for a dog to help her cope but the first defender "had put his foot down". The pursuer accepted that the deceased had obtained advice in relation to the October will. In relation to the November will it was put to the pursuer that it was strangely co-incidental that the year of the date, the deceased's surname (on two occasions), and other detail which might identify the date it was written and the age and circumstances of the deceased, the pursuer and Malcolm at that time were missing. She denied deliberately damaging the will or removing such information. She said that the damage seemed to have been caused around corners and folds. She explained that the 3 stoned diamond and white gold ring had initially been of yellow gold when it had come from the deceased's Aunt Maisie. She said that the assay office had told her there were hallmarks on it indicating white gold and 1985. She had not produced the ring or any written evidence to that effect. She confirmed that Malcolm had married in 1995. In 2004 he had been 35 and she had been 37. She resisted the suggestion that the tenor of what the deceased said about the children and their need for care suggested much younger children. She said that in 2004 Malcolm had suffered from depression and was needy. She assented to the proposition that the deceased was sufficiently close her grandchildren to make provision for them in any will. She agreed that before her second marriage the deceased used the surname Jollie, but after the marriage she used Lennie. She suggested that it was still possible she might have written her name as Jollie after 1986. She did not accept that on p1 of the will there was the base loop of a capital J after "Watt". She said that Jollie had not been written there. She was clear that had Lennie had been written on the missing piece.

Mrs Dorothy Reid
[14] Mrs Reid was aged 63. She first met the deceased in 1988. She lived very near her at that time. Her son and one of the deceased's stepsons were friends at school. She and the deceased became very close friends. She had left Edinburgh to live in Aberdeen in about 1995 or 1996. She had kept in touch with the deceased, by telephone and on visits to Edinburgh. She had regularly come to Edinburgh to visit family. She recalled that after the move to Aberdeen there were times when the deceased got quite down about her relationship with the first defender. She had felt as if she was invisible - especially after the first defender had retired. She was asked whether the deceased ever discussed what she would do with her estate. She replied that the deceased said she hoped her half would go to her children. She had said that more than once. In November 2004 Mrs Reid had spoken to the deceased on the telephone. The deceased had been down and crying. After the call Mrs Reid had decided she would go to Edinburgh the next day and make a surprise visit. She would go on to visit her son. She had arrived at the deceased's home around midday. They had gone to the kitchen and had a cup of tea. The deceased had started to cry again. Mrs Reid had asked what was wrong. She had said she had been writing a will. Mrs Reid had expressed surprise because she had been told about the October will. The deceased had not been sure whether she had done the right thing in the October will: "It was kind of going over her head." She had said "But I've had feelings and I don't know if Malcolm and Lesley will be taken care of. I've written a will. I want to finish it. Will you witness it for me?" The deceased had then written something else on the will. She took about 5 or 10 minutes to finish it. She had signed it. Mrs Reid had then signed it. She asked if the deceased wanted her to date her signature as well, and the deceased had said yes. Mrs Reid had written the date, 16.11.04. When she had signed it the sheet was undamaged and unfolded. It had looked new.

[15] In cross-examination Mrs Reid agreed that while she had given a statement to the pursuer's solicitors she had refused to give a statement to the first defender's solicitors. She was asked why. She replied "I just didn't think it was the right thing to do." She said that "Legally, I didn't know what the position was." She had used the same pencil as the deceased had used. She had not seen the first defender that day. He had not been in the kitchen or lounge when she had been in either of those rooms. She could have been in the house for an hour and a half or two hours. She didn't think that the loop after "Watt" on p1 looked like the base of a "J". The deceased had signed the end of p2 using the surname "Lennie". She said she was more than positive the deceased put the date near her signature because Mrs Reid had asked "Do you want me to do it as well." It was put to her that she was not telling the truth; that she had not visited the deceased that day; and that she had squeezed her writing into a small space on the page because part of the page had been missing at the time. She did not agree with any of those propositions.

Mrs Lynda Ann Fleming
[16] Mrs Fleming was aged 57. She was a neighbour of the deceased and the first defender between 1999 and 2006. She got to know them very well. She and the deceased were very friendly. They had a close relationship. The deceased confided in her. Her impression was that the deceased was lonely. The first defender was out quite a lot. From time to time the deceased mentioned her first husband. Mrs Fleming thought "she still had feelings for" him. She recalled the deceased being slightly agitated one day. She had said she and the first defender were organising a will. She had said "I'm really worried because I don't want my children to lose out on their inheritance from my side." The deceased had said "It is really difficult." Mrs Fleming thought that the people organising the will had been coming that evening. About a couple of weeks later she had asked the deceased how she had got on. The deceased had said it was all sorted, that "everything is going to be halved and I will deal with my half and John will deal with his." She was "totally relieved" it was sorted.

[17] In cross-examination she agreed that the deceased appeared happy with the way things had worked out with the will. She said that the deceased talked about her first husband and about when the kids were young. She had said her first husband had had an affair, but the deceased had not said that had been the cause of the break up: and Mrs Fleming didn't know the ins and outs of what had happened. She had understood from the deceased that the will would mean everything would be split equally and her half would be split between her children.

Doreen Isabel Sherrat
[18] Mrs Sherrat was aged 76 at the proof. She is the sister of the deceased. She was close to her. They used to see each other every week. Sometimes they went on holidays together. The deceased's first husband had had an affair. He had left her. She was unhappy about it. It had been a shock for her. It had been traumatic for the children and Mrs Sherrat could see the effect it had had on them.

[19] Mrs Sherrat had never seen any will made by the deceased. She said "Margaret was leaving it to Lesley to look after her jewellery." When shown the November will in court she did not think the loop after Watt was the base of a "J". She ventured that it looked more like a fold in the paper. She suggested that "my platinum wedding band" would be the ring from Mr Jollie because it had been platinum. The "stoned diamond + white gold" ring was a ring she had got from Aunt Maisie. They had each got a ring from her in about 1974-76. The "cultured pearl necklace" had come from Aunt Maisie at about that time too. The "3 stoned twist diamond ring" had been bought by their mother for Aunt Maisie, but Aunt Maisie had not particularly liked it and she had told their mother she could keep it. The deceased would have got it at the time of her mother's death. She thought that if her mother had given it to the deceased earlier she would have said, but it was not among her jewellery when it came to be divided up after her death. It was possible the deceased had got it before their mother's death. If so, she didn't think it was likely to have been long before her mother went into hospital in 1997. It could have been at the time when some of her mother's valuables were moved to Mrs Sherrat's home for safe keeping.

[20] The deceased' father had died in 1976. Her mother had died in 1998. The deceased had been very close to both her parents. It was put to her that if both had been dead at the time the will was written the deceased would have been likely to refer to being with them both, not just her father. Mrs Sherrat agreed.

The first defender's case
The first defender
[21] The first defender was aged 71. He indicated that when he met the deceased in 1984 she used the surname Jollie. After their marriage she used his surname. Their relationship had been normal. They had had differences from time to time, but most of the time they had been very happy. While the deceased had had some periods of low mood and depression, it was wrong to describe her as lonely and depressed. In particular she had been much happier after he had retired.

[22] They had both discussed making wills. They had both wanted their children to benefit eventually from their joint ownership of their house. They hadn't discussed specific bequests, but it was understood that the deceased's engagement ring would go to the pursuer and that her opal ring would go to the second defender. When they saw Legal Services Scotland's stand at the Royal Highland Show they had made an appointment for a home visit. Rosemary Easson had come to the house in July or August 2004. They had been concerned about inheritance tax. Miss Easson had suggested using discretionary trusts and evacuating the special destination in the title to their house. The main aim had been the avoidance of inheritance tax. They were bequeathing everything to each other but when they both died the children would inherit. The deceased had played a full part in the discussions. The wills had been signed in October 2004. The deceased had not raised any concerns. They had told the children what they were doing.

[23] In late 2004 the first defender had breathing difficulties. On 10 November 2004 he was admitted to hospital. Asthma was diagnosed. At his request, he was discharged from hospital on his birthday, 13 November 2004. He was on steroids and still suffering from mild breathing difficulties at times. He was convalescing at home. Lying down was difficult. The most comfortable position was leaning over an armchair, so he spent most of his time in the lounge. He didn't recall any visitors to the house at that time. Dorothy Reid did not come to visit. She didn't come to the house on 16 November 2004 - her evidence that she was there was simply not true. On that day the deceased had driven him to his GP surgery for a 2pm appointment with Dr Hepburn. They would have left at about 1.45pm. Before that he would have been in the lounge. The route between the front door and the kitchen was through the lounge.

[24] After the deceased's death the first defender had become her executor. His solicitor had advised that the inheritance tax position had changed dramatically, and that it was now unnecessary to use a discretionary trust to avoid the imposition of inheritance tax. If all the beneficiaries agreed it could be dispensed with. The pursuer was not prepared to agree to a deed of variation.

[25] When the November will had been produced he had thought it was a suicide note written in the early 1980s. There was no reference to him in it. There was no mention of the deceased's grandchildren (on whom she had doted). One of the last gifts he had given her had been a large locket. They had agreed that that should go to D. The husband referred to was obviously Alan Jollie. The first defender was unaware of any "gold St Christopher" or "horn of plenty". The 3 stoned diamond and white gold ring was a ring they had had reset and used as an engagement ring. He was astonished at the reference to her Heriot's plaque - that was away at the back of a cupboard somewhere. The fact she didn't mention wanting to be with her mother was significant and indicative of her mother being alive at the time it was written. Her reference to her share of the house would have been to the house at Currie. It was just too convenient that the missing pieces removed the deceased's surname and the date.

[26] In cross-examination the first defender confirmed that he and the deceased had wanted to avoid a scenario in which everything went to the children of one of them. He had not realised that the October will would permit that to happen. The first defender had written a new will since the deceased's death. He had reconciled with his son Alastair in 2006. The deceased had been aware that the first defender planned to make provision for Alastair. They had discussed it. In his new will Alastair was included as a beneficiary. The first defender's three children and the pursuer would each get one-fifth of his estate, and Malcolm's children would share the other fifth. He agreed to produce the will. (It was duly produced and lodged (6/15 of process)). It had been executed on 11 October 2010, before he was aware of the November will but after some dissatisfaction had first been expressed by the pursuer. The first defender acknowledged that in terms of clause (FOUR) of 6/15 the pursuer was to inherit the lesser of one-fifth of his estate or one-fifth of the deceased's estate. In terms of clause (FIVE) each of his children stood to inherit 25 per cent of the residue with Malcolm's children sharing the remaining 25 per cent. The aim of clause (FOUR) was to prevent the pursuer obtaining a "windfall" benefit in the "unlikely" event of his estate having increased in value by the time of his death. He suggested that restricting the pursuer's share to one-fifth of the deceased's estate did not in fact reflect what he had intended and that he would change it. Appended to 6/15 was a codicil dated 22 April 2013. Clause (ONE) thereof provided that in the event of the present action not having been concluded prior to his death he revoked the bequest to the pursuer made in clause (FOUR) of the will of 11 October 2010. The first defender explained that this was designed to prevent the pursuer benefiting twice (under the November will and under his will) if she succeeded in the action. He clarified that he presumed the "platinum wedding band" referred to in the November will was the wedding ring Mr Jollie had given the deceased. The wedding ring he had given the deceased had been either white gold or platinum. On being referred to the sales invoice for it he accepted that it was platinum. Asked why it had been averred on his behalf (p11E) that this wedding ring had been gold, he said he had thought it had been white gold. It was to match the engagement ring. He accepted that the averment was inaccurate.

[27] Under reference to his diary 7/1 of process the first defender confirmed that the appointment with Dr Hepburn had in fact been at 2.30pm on 16 November 2004, not 2pm. He and the deceased would have left the house at about 2.15pm. He was asked if he recalled what he and his wife had done on several other days when other GP appointments were noted in the diary. He could not recollect. In relation to 16 November 2004 he accepted that he had no actual recollection of being in the lounge at the material time but he was adamant that he would have been. He would have remembered if Mrs Reid had visited that day - she had not. There was no possibility he was mistaken. Mrs Reid had not visited regularly after the first defender had retired. She and the deceased had kept in regular contact by email. It was put to him that Mrs Reid had no personal interest in the outcome of the case. He replied "She has no personal interest. She has an interest in what she presumes Lesley should get." There was no escaping the conclusion that Mrs Reid was lying. She had not been there that day. Her signature and the date were a deliberate falsification. He was astonished that she was willing do that and to commit perjury.

[28] The first defender accepted that if the pursuer succeeded in the action the November will would be her last will and testament. It was put to him that in that event, as executor, he would be under an obligation to comply with it. He indicated that he understood that.

Rosemary Anne Easson
[29] Miss Easson was a member of the Society of Will Writers. In 2004 she had been doing will writing for about 18 months. At that time she was employed by Legal Services Scotland. She vaguely recalled preparing wills for the deceased and the first defender. At that time people were mostly concerned about avoiding inheritance tax. That had been the position with the deceased and the first defender. She had seen them both together at their home. She had drawn up the October wills and the evacuation of the special destination (6/14). Her standard practice would have been to have discussed the effect of clause (5). She would have explained that on death the sum referred to in the clause "would go into trust for the benefit of whoever was appointed trustee first and thereafter it would be there for the benefit of whoever they appoint. I would say it was there for the protection of each other first." She was not aware of any concerns being raised by the deceased. After a will was signed she always handed out business cards and advised that the client should get in touch if they wanted to make changes. She had not received any call. So far as the evacuation of special destination was concerned it had not been registered at that time: her employer's standard practice had been to register it if required on the death of the first spouse.

Submissions for the pursuer

[30] Mr Macpherson accepted that it was for the pursuer to prove the tenor of the November will and the circumstances in which it had come to be damaged; Cunningham v Mouat's Trustees (1851) 13 D 1376 and Duke of Athole (1880) 7 R 1195. He submitted that I should find the evidence of the pursuer's witnesses to be credible and reliable, and that I should grant decree in terms of the first conclusion (with certain minor proposed amendments). If I was with the pursuer in relation to that I should also pronounce decree in terms of the second conclusion (as amended). In relation to the third conclusion (for interdict) I should put the matter out by order to hear further submissions as to whether it was necessary in the circumstances to grant a permanent interdict.

[31] The critical evidence came from the pursuer and Mrs Reid. If I accepted their evidence the pursuer's case was made out. I should accept that they were credible and reliable witnesses on all material matters. In particular, there was no good reason to doubt Mrs Reid's evidence. She was an independent witness. She had no reason to lie. There was simply no good basis for accepting the first defender's contention that she was lying, had committed forgery, and had perjured herself in court.

[32] The bases the first defender had for advancing those extreme propositions were (i) the first defender's claim that he would have been present in the lounge at the time Mrs Reid visited and that she had not visited; (ii) that the content of the will strongly suggested that it had been written at a much earlier date; (iii) that the missing parts of the November will gave rise to suspicious circumstances.

[33] So far as (i) was concerned, the reality was that the first defender had no actual recollection of what he did on 16 November 2004, in the same way as he had no actual recollection of the other days he had had doctor's appointments. His attention was not focused on that day until at least six years later. There was no reason to think that he would remember, or attach any significance to, a visit by Mrs Reid to the deceased. His evidence in that regard was not reliable. In relation to (ii), it was conceded that the reference on p1 could only be to Mr Jollie. It was far less clear who the man discussed on p2 was, but the first defender could not be ruled out standing the evidence of the pursuer, Mrs Reid and Mrs Fleming. The fact that the deceased had used the past tense "was married to" suggested that she had divorced Mr Jollie at the time of writing. Other indications were consistent with it being written after her marriage to the first defender, eg the first defender had given her a platinum wedding ring, and the 3 stoned diamond and white gold ring had been used as their engagement ring. It was quite possible that parts of the will had been written at an earlier time: Mrs Reid only saw it being completed and subscribed. With regard to (iii), on one view the missing parts of the will did give rise to suspicion. However, the pursuer's explanation of how the damage came about was entirely plausible - the damage was largely at corners and along folds. While the court might well conclude she could, and probably should, have taken better care of the November will, she didn't fully appreciate its importance at the time, because of what she had been told the October will provided. Crucially, the court was not reliant solely upon the pursuer as to what the critical parts of the will had said. There was corroboration from the evidence of Mrs Reid.

Submissions for the first defender
[34] Mr Hastie agreed that the three critical witnesses were the pursuer, the first defender and Mrs Reid. The pursuer's evidence was favourable to her own financial interests. It was six months after the deceased's death before the November will was mentioned or produced. The terms of the November will pointed strongly to it having been written at a time when the deceased was in despair as a result of the breakdown of her first marriage. It looked as if a "J" had followed the word "Watt" on page 1 which was indicative of it having been written before the deceased had remarried. The references to her children appeared far more consistent with it having been written when they were young and in need of care (and certainly both unmarried), rather than when they were middle aged and independent. The bequests of the jewellery were neutral. It was notable that the pursuer's case as pled was that the deceased wrote it "[o]n or about 16^th November 2004"; the case pled was not that part of it had been written at an earlier time. It was important to remember that on her own account the only occasion when the pursuer had read the will in its intact form had been in February 2005 not long after she had been given it. That was an important factor in the assessment of her credibility and reliability - in particular in respect of her claim that she had a clear recollection of the missing surname and year.

[35] The circumstances of the production of the document in its damaged state were highly suspicious: particularly telling were the absence of the deceased's surname (in both places where it would have appeared), the absence of the year from the date, and the absence of other descriptive material which might have placed it clearly in context. The pursuer's explanation for how the damage had come to pass was incredible and should be rejected.

[36] Mr Hastie urged me to accept the evidence of the first defender that Mrs Reid had not visited on 16 November 2004. He would have been in the lounge that morning, and would have seen her if she had been there. The corollary was that I should not accept the evidence of Mrs Reid. Her writing appeared to be squeezed into the available space, which suggested it had been added after the paper had been damaged. There was no independent evidence corroborating a visit by her to the deceased on the material date. While she did not have a financial interest in the outcome of the action, her refusal to provide a precognition to the first defender's solicitors signalled a degree of partisanship. A further factor was the inherent unlikelihood of the deceased having changed her mind so soon after having executed a formal will.

[37] Mr Hastie referred me to Walker and Walker, The Law of Evidence in Scotland (3^rd ed.) para 20.7 and Graham v Graham (1847) 10 D 45. There was no dispute as to the legal principles which were applicable. It was for the pursuer to prove that November will had been subscribed by the deceased on 16 November 2004; and that it was damaged in the way she described after it had left the custody of the deceased. If her evidence and the evidence of Mrs Reid were accepted she would succeed. In that event it was accepted that decree would also fall to be pronounced in terms of the second conclusion (as amended).

Discussion

[38] I turn first to the subsidiary witnesses. Each of Mrs Fleming and Mrs Sherrat struck me as being credible and substantially reliable. Ultimately there was little, if any, controversy over their evidence. Miss Easson was a credible witness, but I am not persuaded that she had any real recollection of the explanations she gave the deceased and the first defender as to the legal consequence of the October will. Whatever she did say, it is clear to me on the evidence that the legal consequences were not fully and clearly understood by the deceased or the first defender.

[39] The key witnesses were, of course, the pursuer, the first defender and Mrs Reid.

[40] Mrs Reid confirmed that the deceased subscribed the November will on 16 November 2004. She appended her signature as a witness at the same time. She

gave her evidence clearly and in a straightforward manner. Her evidence emerged intact from cross-examination. Her reaction to the suggestion that she was not telling the truth was one of real and unaffected astonishment. The explanation which she gave for not agreeing to provide a precognition to the first defender's solicitors also seemed to me to be genuine.

[41] If I accepted the first defender's evidence that Mrs Reid did not visit on that date that would be a good reason to reject her evidence. While, in his evidence generally, I formed the view that the first defender was endeavouring to tell the truth and could in most instances be relied upon, I am not persuaded that his evidence as to events at his home on 16 November 2004 is reliable. I do not doubt that he has convinced himself that Mrs Reid did not visit that day: but I do not believe that he has any genuine recollection of (a) where he was in his house at the material time that day, or (b) whether Mrs Reid visited. Neither of these matters was of any moment to him until many years later when he became aware of the November will.

[42] There is no doubt that parts of the November will are curious, and in some respects puzzling. Some of it makes no sense (eg the direction, in relation to her "share of house", that "whomsoever [of her children] do not marry will stay in it until they do or die"). I accept that there are some indications which suggest that some of it may have been written earlier than 16 November 2004. Parties were at one that the reference on page 1 to the man the deceased was married to could only be her first husband. In my view it is tolerably clear, reading the document as a whole, that the deceased began to make reference to him on page 1 and that she continued her observations in connection with him on page 2. It does look as if the deceased has written the base of a capital "J" on page 1 after "Watt". There are references to the deceased's children which are more consistent with them having been written when the children were young and in need of care (and certainly both unmarried) rather than when they were middle aged and independent. The omission of reference to the deceased's mother in the passage "to be with my father + my beloved family" might suggest that at the time the passage was written her mother had not yet died (the pursuer thought not, and saw nothing odd in the deceased including her mother in the description "my beloved family"). On the other hand, there are other indications that at least parts of the document were written at a time or times later than the deceased's engagement and marriage to the first defender. While the reference to "my platinum wedding band" is neutral (as both the deceased's wedding rings were platinum) the references to the other rings point to their having been written later than the first defender suggests. It looks likely that the description of the first diamond ring referred to was " 3 stoned diamond + white gold engagement ring". That ring only became the deceased's engagement ring on her engagement to the first defender. The evidence relating to the 3 stoned twist diamond ring was that the deceased obtained it from her mother around the time of, or relatively shortly before, her mother's death in 1998. The unchallenged evidence of the pursuer was that the deceased didn't receive her "grandmother's gold wedding ring" until her mother died.

[43] However even if some of the will was written at an earlier time, that is not inconsistent with Mrs Reid's evidence. On her account the will had been substantially written before she saw it, and the deceased made additions before signing it. The existence of interlineations, parts of the text which are compressed, and parts in smaller script tends to suggest there was some such process of addition or revisal.

[44] I accept the evidence of Mrs Reid as being credible and reliable. She is independent of the pursuer and the first defender. She has no financial interest in the outcome of the litigation. I formed a favourable impression of her in the witness box. There appears to me to be no good basis for treating her as being other than a law abiding and respectable individual. I reject the suggestions that she has acted in a partisan way, has lied, has colluded in the creation of a false document, and has perjured herself.

[45] Without Mrs Reid's evidence the damage to the document would have appeared to me to have been highly suspicious. With the benefit of her evidence I see matters in a very different light. Her evidence provides very substantial confirmation and support for the evidence of the pursuer. Mrs Reid's evidence corroborates that the document was indeed signed by the deceased using her married name "Lennie" and that it was dated 16 November 2004. It also corroborates the pursuer's evidence that the deceased was concerned that the October will might not adequately protect her children; and that securing that her children would be provided for was the motivation for making the November will.

[46] I found the pursuer to be a credible witness. With certain qualifications, I also accept that her evidence was reliable. I formed the view that she tended to overstate, at least to some extent, the degree of difficulty which the deceased experienced in her marriage to the first defender. In relation to her evidence as to the contents of missing piece (ii), I doubt whether her recollection of what adjoined the loop after the word "Watt" is wholly reliable. The loop appears to me to be the base part of a "J", and I think it is a reasonable inference that the remainder of that letter was written. Nonetheless, I accept her evidence that one of the words written on the piece was Lennie. More importantly, I accept her evidence that the year on missing piece (i) was 2004; and that she subscribed using the surname Lennie on the reverse of missing piece (v). I accept her account of the circumstances in which the document was given to her by the deceased. I also accept her account of the circumstances in which it came to be damaged.

[47] It follows that the pursuer has discharged the onus upon her of proving the tenor of the November will. It was accepted that in those circumstances she was also entitled to decree in terms of the second conclusion as amended.

Disposal

[48] I shall put the case out by order. In relation to the first conclusion I draw parties attention (for what it is worth) to the fact that the word "do" appears before the words "or die" but does not appear in the conclusion. (An edge of the paper had covered and obscured that word, but the word is clearly written underneath it). Subject to anything the parties may wish to say about that, I propose to sustain the pursuer's first and second pleas-in-law, and pronounce decree of declarator in terms of the first conclusion (as amended) and decree in terms of the second conclusion (as amended). At the same time I shall also hear parties on the question of interdict, and in relation to expenses.