Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 35

 

A287/13

OPINION OF LORD CLARKE

In the cause

SHEILA RITCHIE

Pursuer;

against

JAMES DOMINIC GALLACHER NELSON (AP)

Defender:

Pursuer:  Henderson;  Drummond Miller LLP

Defender:  Ardrey;  Allan McDougall

4 March 2016

[1]        In this action, which came before me for proof before answer, the pursuer seeks reduction of a disposition granted by her deceased aunt of subjects at 24 Eaglesham Road, Clarkston, Glasgow in favour of the defender and others, dated 2 July 2007 and recorded in the General Register of Sasines applicable to the County of Renfrew on 10 July 2007. 

[2]        The pursuer is the executrix-dative of Mary Gallacher, her deceased aunt and disponer of the said disposition (hereinafter referred to as “the deceased”), who died on 31 March 2011 aged 96.  The pursuer was confirmed as executrix-dative on 31 March 2011 conform to an interlocutor of the sheriff at Hamilton dated 20 March 2012.  The pursuer claims, in these proceedings, that the aforementioned disposition falls to be reduced either because the deceased did not have, at the date of its execution, the necessary mental capacity to grant the deed or, alternatively, that if falls to be reduced having been obtained through facility and circumvention.  As will be seen the hearing before me was primarily focussed on the question as to whether the deceased had the necessary legal capacity to grant the disposition in question, the pursuer maintaining that she did not, the defender maintaining that she did.  While the pursuer maintained her case based on facility and circumvention that case was, in the event, perhaps, less developed.

 

The evidence

[3]        The subjects to which the present proceedings relate were the home of the deceased for many years, the background being as follows.  The deceased came from a very large family.  On the death of her mother in 1963 the deceased became, in effect, the head of the Gallacher family.  In 1966 the subjects were purchased in the name of the deceased, a sister, Grace Gallacher (died 1992) and her brother Francis Gallacher (died 1999).  There was some evidence that the subjects were purchased by funds which had originally been acquired by the deceased’s father on his selling of his turf accountant’s business.

[4]        From 1966 onwards, as well as the deceased, the said Grace Gallacher and the said Francis Gallacher, there were living in the said subjects for different periods, the deceased’s brother Hugh Gallacher (died 1990), her brother Robert Gallacher (died 1981), her sister, the defender’s mother Catherine Gallacher or Nelson, who died on 5 April 2008 and the defender’s brother Francis (died 2006).  In total the deceased had 11 siblings all of whom predeceased her, one of the sisters, Elizabeth Devlin, being the mother of the pursuer. 

[5]        It appeared reasonably clear, from the evidence, that the family saw themselves, for whatever reasons, as being divided into two groups – those who were members of the family who over the years resided in the said subjects and the others.  The deceased’s brother Robert and her sister Catherine, although they resided at the said subjects, did not have any title to them because both of them were separated from their spouses, but not divorced, and there was a concern that their spouses might, in the event, of their predeceasing them claim a share in the said subjects.  The other disponees of the said subjects under the 1966 disposition were Grace, who predeceased the deceased, and died without evacuating the destination contained in the disposition.  The defender, in his answers, refers to two wills executed by the deceased, the first dated 7 May 1981 and the second dated 10 November 2004, copies of which were lodged in process as numbers 7/12 and 7/13.  In that respect I should indicate that the appointment of the pursuer, as executrix-dative to the deceased, is now challenged in proceedings in the sheriff court which were sisted on 23 October 2013.  The process in those proceedings was ordered by this court to be transmitted to it by interlocutor of 6 November 2015. 

[6]        I heard evidence from the pursuer herself and Edwina Nelson the widow of Francis Nelson, the brother of the defender.  The pursuer also led evidence from Stephen Lawrence, the former boyfriend of the defender’s daughter Suzanne Nelson, Mr J R Duff solicitor and two medical witnesses, Dr Damian Francis Lynch and Dr Rachael Clarke.  The defender himself gave evidence as did his wife, Mrs Susan Nelson, and their son James Richard Nelson.  The evidence of the defender’s daughter Suzanne was taken on commission.  A friend of the defender’s Michael McPhee gave evidence and there was led, on behalf of the defender, a medical witness Dr Rajdeep Routh.  The defender also lodged, and sought to rely on, an affidavit from a solicitor Mr Hugh Kennedy, a former partner in business of the said Mr Duffy.  The affidavit is 7/15 of process and is dated 10 January 2014.  I was given to understand that Mr Kennedy has subsequently died.  He was 79 years of age at the date on which he deponed.

[7]        From the evidence before me I am able to accept that the deceased was a lady who had kept good physical health throughout her life until towards the very end of that life and was one who sought to avoid doctors and the taking of medicine.  I accept also that her life revolved largely around those members of the family with whom she lived and latterly her sister, the defender and his family.  She had little or no other social contacts.  She showed an interest, along with her sister, in betting on racehorses which was a daily hobby of theirs.  She also enjoyed attending bingo sessions.  Apart from such excursions to places, such as Largs, that was the extent of her social life. 

[8]        The pursuer, herself, accepted that she saw the deceased only very infrequently over the years and that occurred normally at family events, such as weddings and funerals.  She had last seen the deceased in 2001 on the occasion of her own daughter’s wedding.  In recent years the pursuer had herself been seriously ill which had severely reduced the opportunities for her to visit the deceased.  She learned that the deceased had been admitted to hospital at a time which was not specified by her.  She said that she phoned to ask about the deceased’s welfare.  She was not informed by the defender that the deceased had died.  She received that news some time after the deceased’s funeral from a care worker who had worked at the nursing home where the deceased had died.

[9]        The pursuer understood that the defender was claiming that he had inherited the deceased’s property.  She did not consider that that was right.  She was unaware of the deceased having left any will and did not enquire as to whether or not that was the case.  She sought appointment as executrix-dative.  Her solicitor made enquiries, on her behalf, which, she said, indicated that the deceased had been suffering from advanced dementia during the last year or so, prior to her death.  On receipt of that information she instructed the present proceedings.  She accepted there was a long-standing estrangement between the two branches of the family, “the Eaglesham Road circle”, of whom the defender was a member, and the other relatives including herself.  She could not accept that the defender had acted like a son towards the deceased and was so treated by the deceased. 

[10]      The witness Edwina Nelson, widow of the late Francis Nelson, who was the defender’s brother, advised the court that since 1989 she and Francis had lived in Clarkston, their home being some five minutes away from the deceased’s home.  This witness said that she and her husband Francis were close to the deceased and her sister and used to visit them most days over a period of about 20 years.  They took the deceased and her sister on holiday once a year until about 2003 or 2004, when as the witness put it the deceased “was a bit losing it” and was becoming too much to cope with on holiday.  The deceased would act oddly, for example, claiming that a ring of hers had been stolen when in fact it was still on her finger. 

[11]      The witness and her husband collected the deceased’s pension from the post office for her.  By 2003 – 2004 the witness’ husband had indicated that all the pension money should not be given to the deceased as she was treating it like paper and throwing it into a bin.  The witness said that after the death of her husband in 2006, she herself continued to visit the deceased and her sister once or twice a week.  She said that the deceased’s mental condition was getting worse, as time went on.  Mrs Nelson’s own mother developed dementia and latterly she found it more difficult, as a result, to visit the deceased.  When the deceased ultimately was admitted to a nursing home, the witness visited her a couple of times.  She was not informed, however, of the deceased’s death until two or three weeks after the death and discovered this from a friend of her deceased husband.  The witness’ evidence was that after her husband’s death, when she visited the deceased, the condition of the deceased’s mind appeared to be getting worse and she was of the view that by 2007 the deceased was suffering from some form of dementia and that “there had been every sign of that before”.  She was of the view, indeed, that the deceased’s mental condition had begun to deteriorate from about 2001.  The deceased, and her sister, had enjoyed placing bets on racehorses every day, the betting slips being collected by the witness and/or her husband.  Latterly the deceased could not understand the racing lists.  On family occasions the deceased would appear to be fine but at other times “she would talk a lot of nonsense”.  The witness said that she had no knowledge of any will executed by the deceased and had only on the morning of her coming to court to give evidence learned that the pursuer had been appointed to be the deceased’s executrix.  The witness confirmed that the deceased did not socialise, apart from attending family events and going to the bingo.  The witness went to the bingo with the deceased and her sister but the visits to the bingo stopped because the deceased could not follow the numbers.  The defender had stopped talking to the witness from the time of her husband’s death.

[12]      I found this witness to be straight-forward and credible in the giving of her evidence.

[13]      The witness, Stephen Lawrence, explained that he had been the boyfriend of the defender’s daughter Suzanne, during the period 2002 – 2009.  He regularly visited at the defender’s home and got to know the family.  He went to the deceased’s home in Eaglesham Road a couple of times and met the deceased on those occasions.  In July 2007 he had been at the defender’s home on an occasion when he was presented with a document, 6/2 of process.  He was asked by the defender to sign it “as a witness”.  The witness said that what he believed he was being asked to do was to confirm that he had seen the document.  He did not recollect anyone else being present at that time apart from himself and the defender.  He said that he had not seen the deceased on that day.  In cross examination Mr Lawrence said that while it was possible that the deceased was in the defender’s house at the time he had no recollection of seeing her.  He was simply asked by the defender if he could witness the document.  I had no hesitation in finding this witness to be credible and reliable. 

[14]      The deceased’s solicitor, at the date of the said disposition was the said Mr Hugh Kennedy.  He had apparently been the Gallacher family’s solicitor since about 1966.  As I have previously noted, he died prior to the date of the proof but an affidavit sworn by him 7/15 was lodged on behalf of the defender.  As to the evidential weight and value of this affidavit, certain submissions were made at the outset of the proof by counsel for the pursuer.  I will revert to these in due course.  For the present I will confine myself to setting out certain aspects of what appear in the affidavit. 

[15]      At paragraph 10 thereof Mr Kennedy said that he had acted on behalf of the deceased and others in the original purchase of the subjects.  At paragraphs 14 – 17 of the affidavit Mr Kennedy stated that he had acted on behalf of the deceased in drawing up a continuing power of attorney in terms of which she appointed the defender and his brother Francis as her continuing attorneys in terms of section 15 of the Adults with Incapacity Act (Scotland) 2000.  He had acted as a witness to the power of attorney which was executed on 30 September 2004.  Mr Kennedy stated that:

“Under no circumstances would I have acted on behalf of the deceased in preparing a power of attorney, witnessing an execution of the deed and giving the certificate if I had any reason to believe that she did not have legal capacity to grant such a power of attorney”.

 

In the affidavit Mr Kennedy, furthermore, spoke to his having instructions from the deceased with regard to the preparation of the will, executed on 10 November 2004.  As regards the said disposition, at paragraph 26 of his affidavit, the deceased’s siblings named in the previous disposition of the subjects, as disponees, having died, he took instructions from the deceased to prepare the necessary disposition to transfer ownership from her sole name, as the survivor, into the names of herself, her surviving sister, Mrs Catherine Nelson, and the defender and to the survivor of them.  The deponent said to the best of his knowledge he would have obtained the deceased’s instructions in her home.  He would have prepared the necessary documents which would then, in all probability, have been collected from his office to be taken to and signed by the deceased.  Mr Kennedy deponed that he certainly would not have prepared such documentation without specific direct instructions from the deceased to do so and that he would not have prepared such a disposition on behalf of the deceased if he had had any doubt about her capacity to grant such a deed.  At paragraph 31 he deponed that:

“At no time did I have any cause to believe that the late Miss Gallacher was suffering from dementia or otherwise lacked capacity to give instructions and to execute the documentation which I drew up on her behalf and in accordance with her instructions”. 

 

[16]      Mr John Kevin Duffy, a former partner of Mr Kennedy in the firm Ruthvan Keenan Pollock & Co, informed the court that he had been asked to hand over the firm’s file in relation to the work done in connection with the said disposition, the relevant documents being 6/6 of process.  He accepted that there was no indication in the relevant papers of the client’s identification.  Moreover he agreed that, included in the papers, was a copy of a letter from Mr Kennedy dated 7 August 2007, addressed to the defender at his home address, which was headed “24 Eaglesham Road” and which stated:

“I enclose copy of duly registered Disposition of the above property and I have placed this with the remaining Titles and enclose herewith my own Business Account in the matter for your attention”. 

 

The business account in question had no name on it.  There was no record in the file of any meeting between Mr Kennedy and the deceased.  There should, the witness said, have been a terms of business letter.  There were no file notes of instructions being taken from the deceased herself and no record of the disposition or any copy of it being sent to the deceased herself.

[17]      The first of two medical witnesses led on behalf of the pursuer was Dr Damian Lynch who had been instructed, on behalf of the pursuer, to prepare a report setting out his opinion as to the mental capacity of the deceased at the date of the execution of the said disposition.  His report, to which he spoke and adopted in all material respects in evidence, is 6/5 of process. 

[18]      Dr Lynch is an approved practitioner, registered under section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003.  He is a consultant psychiatrist, specialising in the care of older adults with mental health disorders in East Kilbride.  From 2010 to 2014 he held the position of head psychiatrist for older adults in South Lanarkshire.  He explained that he had been involved both within his work for the National Health Service, as a consultant psychiatrist, and within private practice, in making assessments of the capacity of individuals to make financial or welfare decisions.  Such assessment very often, he said, were linked with the process of granting a power of attorney and also in relation to applications for welfare and financial guardianship.  The witness estimated that he had prepared several hundred reports over the last few years in respect of applications for guardianship under section 22 of the said Act.  He described the process which he would follow when carrying out such an assessment of a living person.  In the case of the deceased, however, he had to rely on the evidence available in the medical records that pertain to the deceased.  These revealed that the deceased had apparently been a very healthy lady until she reached about 90 years of age.  As a result, the general practitioner records relevant to her up until 2008 were relatively thin.  The witness had available to him the following relating to the deceased: 

• Hospital records provided by health records department, Southern General Hospital.
• General practitioner records provided by Greenhills Medical Practice.
• Mental health service records provided by the Records Department, Leverndale Hospital.
• Mental health service records for South Lanarkshire, accessed through Genysis System, South Lanarkshire.

His review of the foregoing material allowed him to make the following statement at page 6 of his report. 

“It is however clear that all medical, nursing and allied health professionals involved with Miss Gallacher’s care from 2008 onwards regarded her as a lady with an advanced dementing illness requiring extensive care and support with all activities of daily living and being appropriate for long term nursing dementia care”.

 

[19]      The witness reviewed the records which dealt particularly with two admissions of the deceased to in-patient care in hospital in August and September 2007.  Dr Lynch noted that the deceased was assessed by the receiving medical team at the Southern General Hospital on 22 August 2007.  The relevant note was to the effect that there was “no history from the patient as confused and very difficult”.  She was noted to have “GCS 14/5 confused”.  The deceased was admitted to a ward and was noted to be “agitated, disorientated to place and person”.  It was also noted that a history of the deceased was available from the patient’s nephew, ie the defender.  On 23 August 2007 the deceased was noted to be “confused”.  A diagnosis of a likely urinary tract infection was made.  On 24 August she was noted to be “agitated and aggressive”.  On 27 August a physiotherapist documented that “patient previously mobile with WCF (frame); increasing confusion and decreasing safety awareness is her norm, according to family”. 

[20]      The deceased was discharged and allowed home but was readmitted to the Victoria Infirmary Glasgow on 7 September 2007.  An admitting history was made which referred to:

“Increasing confusion, history of dementia, apparently previously well, recently admitted with confusion to ward 14 then ward 15 with presumed UTI – according to nephew patient remains confused, was wandering out on the streets and very paranoid… called GP tonight and advised admission to hospital but no accompanying letter”. 

 

It was clear that the defender had arranged for the hospital admission through the deceased’s general practitioner and that he had attended at the hospital with the deceased.  The deceased was noted to be “not cooperative or compliant with treatment or test”.  It was, furthermore, documented “according to nephew, apart from dementia nil else and does not take any tablets” (emphasis added).  A further medical note was to the effect that the impression at the time of admission was of “confusion, secondary to infective causes, secondary to worsening of dementia”.  On 8 September 2007 Dr Roberts, a consultant specialist in the care of the elderly assessed the deceased “as being very confused, believes she’s at home”.  The deceased was noted to be refusing investigations and to be pyrexial with “probable deteriorating dementia”.  Dr Roberts requested a psychiatric review.  The deceased was then transferred to the department of medicine for the elderly under the care of Dr Roberts.  She was noted to be confused, wandering and physically aggressive to staff members.

[21]      On 11 September 2007 the deceased was referred to a psychiatric liaison team by a Dr Keene who reported that she was:

“A 93 year old lady transferred to Mental Health Unit 07 September 2007… admitted with confusion secondary to UTI… refusing all investigations and intervention”. 

 

Her challenging and behavioural presentation was noted and that “it has proved impossible to perform an MMSE (brief cognitive screening tool)”.  Dr Keene noted that “likely diagnosis is that of progressive dementia”.

[22]      There followed, on 14 September 2007, an assessment of the deceased carried out by Dr Rachael Clarke who was led as a witness for the pursuer.  Dr Clarke carried out an assessment of the deceased having seen her in the hospital ward.  She noted that “her nephew (the defender) has increasing concerns about her being at home.”  Dr Clarke noted that the deceased did not appear “particularly unwell or delirious but it seems likely that she has advanced dementia – certainly her presentation on the ward would imply that she currently lacks capacity to make any decisions about her own care and welfare”.  Dr Clarke then referred to the defender having a welfare power of attorney in respect of the deceased.  This was inaccurate, the power of attorney held by the defender being a financial power of attorney.  Notwithstanding that mistake Dr Clarke noted that there are “obviously concerns as to when this Power of Attorney was granted, as I think it is likely that Ms Gallacher would have been unable to give consent in the last year or so” (the actual wording of the letter states that the deceased would have been able to give consent but the witness explained, as shall be seen, in her evidence to the court that this was a mistake and that the word “able” should not have appeared). 

[23]      On 8 October 2007 Dr Roberts wrote to Dr Julia Gray, consultant in psychiatry of old age within the Eastwood Mental Health team.  In that letter Dr Roberts noted that the deceased had “significant dementia” with a crisis developing just prior to admission when she became quite aggressive to her sister as she was trying to wander from the house”.  Dr Roberts had noted that community care assessment of the deceased had been commenced and that it had become clear that the family did not hold a valid power of attorney for welfare decision making and that it was likely that a guardianship would be required for the obtaining of a placement of the deceased in nursing dementia care. 

[24]      Dr Clarke returned to see the deceased on 23 October 2007.  She noted that “Ms Gallacher has fairly advanced dementia and clearly lacks the capacity in making any decisions regarding her own future care and welfare as well as financial issues”.  This statement by Dr Clarke was apparently in relation to a request made of her to give her opinion as to the deceased’s ability to consent to transfer to long-term nursing dementia care.

[25]      The deceased was discharged from the Southern General Hospital on 10 December 2007.  The discharge letter was prepared by Dr Roberts.  In it she noted, inter alia, that it:

“Became clear on discussing with the family that there had been a significant cognitive decline over some years which they had coped with without requesting any help.  The deceased’s family considered that because of the deceased’s demands to go home it would be better if she was discharged home in the first instance supported with additional care from a social work department and an assessment carried out by the social work department and if necessary a subsequent arrangement for admission to a nursing home”. 

 

The deceased remained at her home until April 2008 at which time her sister was admitted to hospital.  In February 2008 the social work department reported concerns about the deceased refusing to take her medication and being at risk of falling.  Her sister was unable to keep her safe.  In April 2008 the deceased was admitted to Lindsayfield Lodge Nursing Home, her sister Catherine having died on 5 April 2008.  The deceased remained in the nursing home until her death on 31 March 2011. 

[26]      Against all of that background Dr Lynch, in his report, gave his opinion that he believed the deceased had a diagnosis of dementia which was active from at least the time of her admission to hospital in August 2007.  The specific type of dementia had not been specified.  Dr Lynch confirmed to the court that “I can find no formal cognitive assessments in the core records dating from 2007 onwards, in either the GP records or the hospital records.  It appears from the evidence that this is due to Ms Gallacher’s unwillingness or inability to comply with such testing.  That is not uncommon in more advanced dementia presentations.  It is also documented by Dr Clarke and others that Miss Gallacher has an “advanced” dementia presentation, and therefore it is not surprising to see that formal cognitive measurements could not be completed.”  In his report Dr Lynch furthermore opined:

“There is evidence that Ms Gallacher suffered from acute onchronic confusion caused by suspected urinary tract infections, which were appropriately treated.  Despite appropriate treatment with antibiotics this produced only minimal changes in her mental state: with perhaps less agitation and less behavioural and psychiatric symptoms, but no significant improvement in her underlying levels of cognitive impairment.” 

 

He noted that the records disclosed that members of the deceased’s family had reported to Dr Roberts a period of cognitive decline in the deceased over several years which, he stated, was entirely in keeping with a diagnosis of dementia.  Dr Lynch accepted that questions of capacity for decision making should always be considered as “decision specific”.  It was, therefore, perfectly possible to have the capacity to make simple decisions about one’s health and welfare but not, for example, to make complex financial decisions. 

[27]      Dr Lynch’s conclusions, in his report, were in the following terms: “All of the above evidence would, in my opinion, indicate that Miss Gallacher suffered from a gradually progressive dementing illness likely of Alzheimer’s or mixed Alzheimer’s and vascular type being present for several years prior to her admissions at the Victoria Infirmary Hospital in August 2007.  I have given consideration as to whether Miss Gallacher suffered from an entirely or substantially new presentation of cognitive function arising between 2 July 2007 and her admission to the Victoria Infirmary on 22 August 2007: I consider this to be, on the balance of probabilities, highly unlikely.”

[28]      With specific reference to Miss Gallacher’s ability to sign a deed transferring her property on 2 July, I would make the following comment.  I believe that it is, on the balance of probability, highly unlikely that Miss Gallacher could have had the capacity to make complicated financial decisions regarding her property on 2 July 2007, only to be found to be suffering from an advanced form of dementia by 22 August 2007 such that she was unable to comply with even the most basic assessments/interviews attempted by medical and nursing staff.  He continued:

“While it is possible for patients to suffer acute deteriorations in cognitive function, such a catastrophic loss of function would, in my experience, be very likely to be accompanied by a marked presentation of physical/neurological symptoms.  For example, a very serious stroke or a significant head injury causing a subdural haematoma, may produce a catastrophic decline in cognitive function, but there was no evidence of any such condition at the time of Misss Gallacher’s admission to hospital in August 2007.  Any acute physical element appears to have been identified (i.e. urinary tract infection) and treated appropriately”. 

 

The witness, in his report concluded:

“In summary following my review of the available evidence I believe it to be, on the balance of probability, highly unlikely that in July 2007 Ms Gallacher possessed the capacity to understand and/or recall complex financial decisions such as would be required to sign a deed transferring ownership of her house to her nephew.”

 

[29]      In the evidence to the court the witness said it was common for someone to present with advanced dementia even though there had been no previous diagnosis by his or her general practitioner.  One in three women over 90 years of age would have some form of cognitive impairment.  There was no evidence in the material before him of the deceased having suffered a sudden and dramatic deterioration in her cognitive abilities because of some other acute deterioration in her health.  His view was that the disposition of one’s valuable property was to be regarded as a significant and life altering decision.

[30]      In cross-examination Dr Lynch accepted that a urinary infection could cause, in a person like the deceased, a quick deterioration but not normally a catastrophic change.  It was highly unlikely that she had been capax and then went downhill rapidly.  The effects of the urinary infection would likely to be transient.  I note, at this stage, that the witness’s views and opinions, as set out fully in his report, were not undermined, in my view, in any material respect in his examination-in-chief and cross-examination.  I also record that I found him to be an impressive witness who has extensive experience in relation to the assessment of the mental capacity of the elderly and who, in my view, had considered carefully and thoroughly the material made available to him in preparation for the task he had to carry out.  He clearly understood the function that he was being asked to perform in court.

[31]      The pursuer’s next witness was Dr Rachael Clarke who is employed as a psychiatrist at Eastwood Health Centre.  She is involved in the assessment of psychiatric patients and, in particular, deals with referrals from the Mansion House Unit.  Dr Clarke had reviewed the medical records in this case before giving evidence.  While she frankly admitted that she had no actual recollection of the deceased, she confirmed that those records did reveal that she, Dr Clarke, was involved in the assessment of the deceased in 2007.  She was referred to 7/17/22 of process which is the record of initial diagnosis of the deceased upon her admission to hospital on 8 September 2007 when she was recorded as having “probably deteriorating dementia”.  This had resulted in a reference by Dr Roberts to Dr Clarke.  The witness saw the deceased on 14 September 2007 in hospital.  Thereafter she reported to Dr Roberts by letter dated 18 September 2007, 7/17/6 of process in the terms referred to above in the evidence of Dr Lynch.  As previously pointed out, Dr Clarke pointed out that in that letter the word “not” should have appeared before the words “have been able”.  Dr Clarke explained that the report contained in that letter, and any opinion expressed by her, would have been reached after seeing the deceased, talking to her, speaking to the nursing staff and having a look at the deceased’s medical records.  Although Dr Roberts had formed a preliminary diagnosis of dementia the witness said that she had remained of that view.  She had known that the deceased had a urinary infection.  The witness’s attention was drawn to the contents of the letter from Dr Roberts to Dr Julia Gray, 7/17/4 referred to above.  Dr Clarke was of the clear opinion that in September/October 2007 the deceased was suffering from advanced dementia.  She thereafter had seen the deceased again on 9 October 2007.  That resulted in a further report from her to Dr Clarke, 7/17/2 dated 31 October 2007 in which inter alia she stated:

“Miss Gallacher has a fairly advanced dementia and clearly lacks capacity in making any decisions regarding her own future and welfare as well as financial issues.  It has been my understanding that if someone is passively consenting to go into long-term care then a guardianship is not necessary.  It would be entirely up to the social work department whether they would see Mrs Gallacher as passively consenting as she is so confused that she is very much more disorientated to where she is at the moment and therefore she is unlikely to be demanding to go home as certainly when I spoke to her she was unsure even where her home was.” 

 

While this witness accepted that the deceased’s urinary infection could have increased her state of confusion she did not consider it likely that it would have, itself, caused a transformation from any mild dementia to advanced dementia.  I found this witness to be entirely credible and reliable. 

[32]      The defender gave evidence.  He spoke to the deceased’s family history and the acquisition and subsequent occupation of the subjects to which the present proceedings relate, all as set out as above.  As regards the disposition he said that he had been present when the deceased signed it.  In 2004 the deceased had executed a will, 7/13 of process, in terms of which he was the deceased’s executor.  He had understood that as a result of that will the subjects would, after the death of his uncle Francis, transmit to his mother, the deceased’s sister.  His uncle Francis had three sons.  The rift between the two branches of the family, the defender stated, went back to the time when he was born.  His twin had died and his grandmother, thereafter, invited the defender’s mother back to the family home to live there.  After his grandmother died the deceased took over as virtual head of what he described as “the Eaglesham clan”.  After his brother Francis died, his widow Edwina had maintained little contact with the deceased and the defender and his family.  He had learned that Edwina held a bank card of the deceased and he made arrangements for that to be returned.  He never saw Edwina again. 

[33]      He had become aware after 2006 that Edwina was registered as a carer of the deceased and her sister.  The defender maintained that he visited his mother and her sister, the deceased, on a daily basis.  The two sisters had, after the defender’s children had gone to school, looked after the children when they came from school.  He took the deceased and her sister on holiday and took them to the bingo.  At one stage the sisters were attending bingo seven nights a week.  Edwina latterly took them to the bingo.  Their attendance at bingo stopped in the early 2000s because, as he put it, “It was getting a bit much for them to go”. 

[34]      The sisters liked to bet on racehorses and his brother Francis and his wife Edwina took their betting slips to the bookmakers.  The two sisters lived lives, to some extent, independent of each other.  In 1981 the pursuer was invited to his wedding.  She did not attend.  He was not invited to the pursuer’s wedding.  After the death of his brother Francis the subject of the ownership of the subject cropped up in conversation among himself, the deceased and the defender’s mother.  The two sisters wanted to update their wills.  The deceased wanted Mr Kennedy to assist them with this.  The defender telephoned Mr Kennedy in about March/April 2007.  He told Mr Kennedy that his aunt wanted him to come to her home to update the sisters’ wills.  The defender believed that it had been on the advice of Mr Kennedy that the deceased had, in 2004, granted the defender a power of attorney.  The defender said that Mr Kennedy, in due course, visited the deceased at her home at an arranged time.  The defender attended the meeting at the request of the two sisters.  Once the defender had shown Mr Kennedy into the room where the sisters were, he said he withdrew and went to another room.  It was his understanding that the two ladies were going to change their wills, as a consequence of his brother Francis’ death, but he was not party to any discussion about this.  Before Mr Kennedy left, the defender had a brief word with him.  Mr Kennedy said that he had taken instructions and would be in touch.  The defender left the deceased’s home and returned to his work.  The following day he asked his mother how they had got on with Mr Kennedy.  His mother said that they had not updated their wills but were to do something equivalent thereto.  The defender then subsequently spoke with the deceased who said she was leaving the home to the survivor of herself, his mother and himself.  She was doing that, having taken Mr Kennedy’s advice, and he would be drawing up a disposition of the subjects.  There was no further discussion about the advice they had taken.

[35]      When asked, in examination-in-chief, how the deceased’s mental faculties seemed to be at this time, that is in March/April 2007, the defender said that “She was fine, she was very clear about what she was doing.”  While she was suffering from long-term arthritis her health was otherwise fine.  He saw no real change in her at all at that time.  She was still filling up betting slips but not so often as before. 

[36]      After Mr Kennedy left it was just a case of waiting, the defender said, for him to contact the defender, the deceased having asked Mr Kennedy to do so.  Mr Kennedy took longer than expected to send the draft disposition.  The defender contacted him in early June 2007 Mr Kennedy offered to post the disposition but the defender said he would personally collect it from Mr Kennedy.  He did so and brought it to the deceased.  He said he told her that this was the document and showed her where to sign it.  He left it with her for her to sign.  The disposition remained at the deceased’s home for a number of weeks without having been signed.  In early July 2007 the deceased took his mother and the deceased on a day trip to Largs.  The unsigned disposition was brought with them.  He knew that his daughter’s boyfriend would be visiting his home later that day.  It would be convenient for the boyfriend to be asked to witness the disposition, as a non-member of the family.  When the defender returned to his home with his mother and the deceased, his wife, daughter, son and boyfriend were all there.  The deceased signed the disposition while in the sitting room of the defender’s home and the defender said he was present when she did so.  According to the defender, Stephen Lawrence was standing behind the deceased.  After the deceased had signed the disposition the defender handed it over to Stephen Lawrence and asked him to witness the document, by signing it which he duly did and handed it back to the defender.  Another document, 6/6 instructions for execution of deeds, required to be completed and he thought that Stephen Lawrence had completed it.  While the defender had read the disposition, after receiving it from Mr Kennedy, he did not discuss its contents with the deceased.  He was aware that somebody who benefited under a disposition should not witness it. 

[37]      The defender subsequently took the disposition back to Mr Kennedy and paid his account by cash given to him by the deceased.  He repeated that at this time he had noticed no deterioration in the mental condition of the deceased.  She was, he said, “as normal as she always had been”.  He considered that she knew what the disposition was for and that it was to deal with “the need to have the house in the hands of one of the three of us”, the reference to “three of us” being the deceased, her sister and the defender.  The defender considered, further, that the disposition was, as he put it, “a continuation of the 1984 will” and that it had always been the deceased’s intention that the house be left to the last surviving member of the Gallacher family who had resided there. 

[38]      Shortly after the signing of the disposition the deceased became incapable of bearing her weight when standing.  She had fallen and could not get up from the floor.  Her general practitioner was called and she was taken to the Victoria Hospital.  But, the witness said, he had no reason to believe that the deceased was in any respect suffering from any mental decline at that point in time.  The defender said he was told at the hospital that the deceased had an infection.  The defender visited the deceased in hospital.  He said that he did not see any noticeable deterioration in her condition during that time.  His only concern was her lack of mobility.  He had no concerns about her mental health.

[39]      After having been discharged from hospital, on the first occasion, the deceased returned home.  However she required to be readmitted to hospital shortly thereafter.  During the period from the deceased’s discharge from hospital and her readmission, the defender said he had seen her every day and that he did not notice any significant deterioration in her mental health.  He accepted that his mother had told him of an occasion when the deceased had tried to get out of the house and that she had been shouting out of the window which, he heard subsequently, had included a cry of “murder”.  While the deceased was suffering from “a little bit of agitation” that had not given him any particular concern.  She was speaking a bit more loudly than before and arguing with his mother, but that had not been uncommon in the past. 

[40]      After her second admission to hospital the defender visited the deceased every evening with his wife.  The deceased was still having difficulty with mobility.  Mentally she was a little bit confused while in hospital because of her infection.  While she knew who he and his wife were she would sometimes say things out of the ordinary.  On her second discharge from hospital the deceased returned to the family home where her sister continued to live.  There had been talk at the hospital of a social work package being instructed but this did not materialise.  The defender and members of his family visited daily.  According to the defender, after the second discharge from hospital, the deceased was very settled and was experiencing no health problems.  She was not noticeably confused.  It was on the death of the defender’s mother, in early 2008, which resulted in the decision that the deceased be admitted to a nursing home.  But for the death of his mother the defender would have expected both sisters to have continued living together.  The defender and his family moved into the subjects in October 2008, after the deceased had been admitted to a nursing home, since there was no reasonable prospect of the deceased returning to live there. 

[41]      In cross-examination the defender was asked about the document 6/3 of process.  That document is headed “Statutory declaration and indemnity for deceased investments”.  It is dated 4 August 2004.  It related to funds in the Halifax bank which had been held by the deceased’s brother James who had recently died intestate.  This document enabled the deceased, as James’ next of kin, to uplift the funds.  On the first page of the document appears, in block letters, the names and addresses of the defender and the deceased.  Against the name and address of the deceased there appears some handwritten words, which appear to have been cut off in the copy of the document.  What appears, however, is as follows “has dimensia unable to sign”.  The form provides for a cheque, made payable to the deceased, to be issued in respect of the uplifted funds.  The document, which contains a declaration on behalf of the persons seeking to recover the funds, is signed by the defender but not by the deceased.  It contains a second declaration said to have been given at the Bank of Scotland Newlands branch, the declaration being made by “Zoe Sander”.  The defender recognised this document when it was put to him and confirmed that he had signed it at the bank, before a bank teller.  He could not explain how the manuscript entry next to the deceased’s name and address had come to be adhibited.  He thought that the words had been added by the bank clerk and had not been there when he had signed the document.  His aunt, the deceased, had been immobile at the time and there was no one else but him to carry out her wishes.  It was pointed out, however, to the witness that his deceased uncle James had three surviving sisters at that time who were entitled to uplift and share the funds.  He was asked why he had not taken the form home to be signed by the deceased.  He said he would have done so had he been asked. 

[42]      The witness accepted that until his death, his brother Francis and his wife Edwina had visited the deceased daily.  He disputed Edwina’s evidence about the deterioration of the deceased’s mental capacity, as evidenced, for example, by her treatment of money and her inability, in time, to fill up bingo cards.  He understood that the terms of the deceased’s will 7/13 of process were to the effect that the deceased’s whole estate was ultimately to be divided between him and his brother Francis.  He said that a problem, therefore, arose when Francis died. 

[43]      In cross-examination the defender said he was not sure if the witness Stephen Lawrence had seen the deceased sign the disposition.  It was then brought to his attention that in his own pleadings there is an express submission that Stephen Lawrence did not see the deceased sign the disposition.  He informed the court that this admission was incorrect.  Everyone had been in the room at the time the deceased signed the disposition.  The defender denied that any information which allowed medical staff to state in the discharge letter 7/17/1 “significant cognitive decline” had come from him.  The defender accepted that he had chosen not to inform persons, such as the pursuer and Edwina Nelson of the deceased’s death and that he had not wanted them to attend her funeral.

[44]      As previously noted the defender’s daughter Suzanne Ritchie gave evidence on commission.  The commissioner, in his report to the court, stated that, over-all, the witness gave her evidence in a clear and straightforward manner and did not act unusually in any respect.  He had no reason to doubt her credibility.

[45]      This witness gave evidence, in particular, of having been in regular contact with the deceased during the period commencing in 2000.  The deceased and her sister would come to the witness’s family home once or twice a month and the witness would visit them in their home from time to time.  She indicated that the deceased had a limited social circle and was a very private person.  The witness would talk to the deceased about her time at school and her plans to go to university.  Miss Nelson was asked if when the deceased went into hospital in 2007 she noticed any material difference in the type of conversation they had together.  She replied “Not at all”.  She said that the deceased was still interested in betting on racehorses and talked about this and showed an interest in the witness’s education.  Ms Nelson graduated from university in June 2007 and, according to her, the deceased at that time was showing a real interest in her graduation.  The witness said that she observed no change in the deceased, at all, at any time prior to her going into hospital in 2007.  She had seen no signs at all of the deceased being unwell either physically or mentally.  At one point, in her examination-in-chief, Ms Nelson said that the deceased was one hundred per cent fine and she was “clear throughout her whole life that she wanted the house to remain within our family”.  She had no reason to believe that when the deceased had granted the disposition she did not know what she was doing.  It had always been her express wish that the subjects would, in due course, go to the witness’s family.  The deceased had, from time to time, spoken critically of the other half of the family. 

[46]      Miss Nelson had not visited the deceased when she was in hospital in 2007, suffering from an infection.  She saw the deceased on her return home and claimed that there was no marked significant difference in the deceased’s mental health from the time before she went into hospital and when she came home.  She was “back to her normal self”.  The witness did not visit the deceased when she went back into hospital in September 2007.  The deceased, after discharge from hospital on the second occasion, was, in due course, moved to residential care.  The witness asserted that this move was simply because of the deceased’s mobility problems.  She visited the deceased regularly in the care home – about twice a month.  The deceased began to deteriorate when in the home and would have memory lapses and repeat herself.  This witness had indicated that she had some experience of dealing with people suffering from dementia and the like and that the deceased had given her no signs of suffering from a similar problem.

[47]      Notwithstanding what the commissioner had to say about this witness’s demeanour and credibility, I find her evidence as to there apparently being no material change in the deceased’s mental ability at all until her admission to the care home completely at odds with a good deal of the rest of the evidence which I heard. 

[48]      The defender’s wife, Mrs Susan Nelson, gave evidence.  She spoke to having been in regular contact after her marriage to the defender with the deceased and her sister.  Prior to the deceased’s admission to hospital in 2007 there had been, in Mrs Nelson’s view, no material deterioration in the deceased’s health apart from her becoming a little less mobile.  The witness had noticed no change in the deceased’s mental condition at all.  She maintained her previous interests and was able to carry out sensible conversations.  Mrs Nelson was adamant, in her evidence, that there had been absolutely no deterioration in the deceased’s mental capabilities before she was admitted to hospital.  On visiting the deceased in hospital the witness said she did not see any great change in the deceased’s mental condition.  The deceased did not have a wide circle of contacts and did not like doctors or taking medicine.

[49]      As regards the deceased’s second admission to hospital in 2007, the witness informed the court that when she visited the deceased at that time the deceased would be fine on occasions, but on others she would be withdrawn and would be asking when she was getting home.  No one had ever expressed any concern to this witness about the deceased’s mental condition.  Nor had the word “dementia” ever come up in relation to the deceased.  The witness, in evidence, said that as far as her day to day life was concerned things returned to normal after her second discharge from hospital.  It was only when the deceased’s sister died that the decision was taken that she could not be managed on her own and would require to be admitted to a nursing home.  The question of what would happen to the deceased’s home never raised its head in this witness’s presence.

[50]      The witness informed the court that she had worked as a legal secretary for 40 years.  She had typed up many dispositions and witnessed thousands of documents.  She had seen her daughter’s boyfriend witness the said disposition.  She was certain that the boyfriend had actually seen the deceased sign the disposition.

[51]      The son of the defender, James Nelson, also gave evidence.  He confirmed that he had been in regular contact with the deceased and her sister since he and his sister were children.  He had seen no deterioration in the deceased’s health, mental or physical, prior to her admission to hospital in 2007.  Up until then she maintained an interest in horseracing and could carry on sensible conversation.  He had no concerns about her mental capabilities.  He had visited the deceased in the Victoria Infirmary and did not notice any problem with her mental condition.  He never saw her distressed or anxious.  “She was just the same as before”.  She remained the same to him until her death.

[52]      A close friend of the defender, Michael McPhee gave evidence of meeting the deceased frequently at family events over a period of some 15 to 20 years.  He had seen the deceased and her sister some time prior to the deceased going into hospital.  While the deceased was less mobile, she did not appear any different with regard to her mental condition.  He visited the deceased once while she was in hospital.  She seemed to be fine.

[53]      Dr Rajdeep Routh, consultant psychiatrist, prepared a report, on behalf of the defender, which is 7/16 of process to which he spoke in evidence given to the court.  He is a fully licensed medical practitioner approved under section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003 as having special experience in the diagnosis and treatment of mental disorders.  He was included on 2 August 2012 in the GMC Specialist Register in relation to Old Age Psychiatry. 

[54]      Before preparing his report the witness had considered the pleadings in the case and the medical records relating to the deceased.  At paragraph of his report, Dr Routh stated “I am unable to find any formal assessment for mental impairment or any diagnosis of dementia from any of her healthcare notes until she got admitted to hospital in August 2007”.  His opinion was that the deceased’s presentation at the time of admission to hospital was consistent with a diagnosis of delirium.  He continued “This is a state of mental confusion.  Something like an infection can cause delirium in an elderly person.  It often starts suddenly but can continue for a while even after the condition causing it gets better.  Delirium is also associated with risk of dementia developing or even acceleration of decline of existing dementia.”  Dr Routh’s ultimate position in his report, however, was that he had not been given sufficient evidence to allow him to conclude that the deceased was suffering from advanced dementia prior to her hospital admission. 

[55]      In evidence to the court the witness explained that degenerative mental conditions in the elderly can progress in stages from mild, through moderate, to severe.  He accepted that, at each stage, the question in relation to capacity had to be answered with regard to the particular act that the individual affected was to perform.  He took the view that the evidence before him suggested that, prior to her admission to hospital, the deceased appeared to be independent in managing her own affairs.  He was critical of the fact that there was not, contained in the medical records, a full detailed history of the deceased taken from the family, before any diagnosis of dementia was made.  He was of the view that changes in her personality in hospital came about because of her physical condition at that time.  At one point in his examination-in-chief, he said that he ruled out the deceased having suffered from dementia while in hospital because of the absence of a good and full history of her behaviour for at least six months before and in the absence of other tests.  However, the witness was able to say that he agreed with Dr Clarke’s conclusion that by the end of October 2007 the deceased had advanced dementia.  Seeing and talking with the deceased, as Dr Clarke had done, would have, according to the witness, allowed her to reach a view about the deceased’s mental condition.  He was not in a position to give an opinion as to when the dementia, in the deceased, had commenced or when she might have ceased to have capacity to execute deeds like the disposition.  Only a doctor who had actually seen the deceased could have formed a view as to her capacity, he opined. 

[56]      In cross-examination, Dr Routh said that he thought that the granting of a disposition was a relatively simple act for an individual to carry out.  He repeated that he did not disagree with the view that in October 2007 the deceased was suffering from advanced dementia and, at that stage, the deceased would not have had sufficient capacity to grant the disposition.  If the mental condition which the deceased suffered from was Alzheimer’s disease then the witness accepted that this was a progressive condition which would have been present for some time.  He accepted that Alzheimer’s disease did not normally involve a sudden catastrophic decline.  The infection which the deceased had been suffering from the witness accepted had been satisfactorily treated.

[57]      It was apparent from the witness’s report and his evidence that he approached the request for an opinion from a standpoint he adopted when, for example, advising on guardianship cases.  His starting point was, he said, always, in such situations, that there was a presumption that the individual who was being considered for guardianship had capacity, the task then being to identify whether or not there were any contra-indications.  I observe at this stage that the court, however, in a contested litigation like the present has to decide the issue of capacity on the balance of probabilities.  Dr Routh did not, it seems to me, address the issue in that way.  His position was simply to say that he could not say what mental capacity, if any, the deceased had before she entered hospital. 

 

Submissions
[58]      Counsel for the pursuer sought decree of reduction of the disposition on two separate grounds.  Firstly, that the deceased was incapax at the relevant date of the granting of the disposition, i.e. 2 July 2007, and secondly that the deed was invalid having been brought about by facility and circumvention. 

[59]      On the basis of the medical records of the deceased, Dr Lynch’s opinion was that she had been suffering from an advanced form of dementia on her first admission to hospital and that it was highly unlikely that she would have had the necessary capacity to grant the disposition when it was executed on 2 July 2007.  That opinion from one experienced in such matters was supported by the evidence of Dr Clarke who had actually seen the deceased and was involved in her treatment in 2007.  She examined the deceased on 18 September and 23 October 2007 her findings being set out in letters to Dr Roberts.  On 18 September 2007 Dr Clarke’s view was that the deceased was suffering from advanced dementia.  Dr Clarke had concluded that the deceased lacked capacity to make decisions regarding her home care.  She, furthermore, observed that in her view it was likely that the deceased would not have had the mental capacity “to grant a power of attorney in the last year or so”. 

[60]      The evidence of these two medical witnesses to the effect that it was likely that the deceased was suffering from advanced dementia at the time of the granting of the disposition, and had done so without the capacity to grant it, was not shaken in cross‑examination. 

[61]      On the other side, the defender’s medical witness had adopted, it was submitted, a strange position.  In evidence to the court he had accepted that Dr Clarke’s diagnosis of advanced dementia having existed in October 2007 was correct.  Both Dr Clarke and Dr Lynch, in their evidence, were able to reach those views on the balance of the probabilities.  Dr Routh, however, seemed to approach the matter on the basis of presumptions of capacity which he felt could not be displaced because of the lack of sufficient evidential material.  Reference was made to the decision of Wilson J in Stephens v Cannon [2005] EWCA Civ 222 at paragraph 46 regarding the place of burden of proof in civil cases.  It was important to note that Dr Routh’s primary position was that he was not in a position to say that, on the balance of probabilities, the deceased had the relevant mental capacity at the time of granting the disposition.  His primary position was that the other doctors, on the evidence available, were not justified in reaching a decision that the presumption of capacity had been displaced.  There was, it was submitted, no compelling evidence to contradict the position of the pursuer’s medical witnesses that the deceased, on the balance of probability, did not have the necessary capacity to grant the disposition at the relevant date. 

[62]      Both the defender and his daughter gave evidence that the deceased had intended to change her will.  There was a problem for the defenders in relation to the evidence regarding the preparation of a disposition.  The family solicitor, Mr Kennedy, was now deceased.  He was aged 79 at the time of providing his affidavit.  The present proceedings were raised in late 2013.  There was no explanation given to the court as to the cause of Mr Kennedy’s death and why his evidence had not been taken on commission, instead of reliance being placed on an affidavit, which was apparently prepared in contemplation of the litigation.  I was referred to the terms of Rule of Court 36.8 which are to the following effect: 

“A party who wishes to have any written statement (including an affidavit) or report, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988, received in evidence shall lodge the statement or report in process and shall intimate such lodging to the other party or parties.” 

 

The annotation to the Rule observes, inter alia, that “The statement is lodged in process and intimated, for what it is worth”.  In the present case, counsel submitted, the court should attach little or no weight to the affidavit.  It was obvious that the issues raised in the affidavit were material which the pursuer would have wished to cross‑examine the late Mr Kennedy upon.  They were of such significance, in the context of this case, that basic fairness required that the pursuer should have had an opportunity to cross-examine the witness on them.  That consideration should result in the court paying little attention to what was contained in the affidavit, particularly when no explanation for this person’s evidence not having been taken on commission had been proffered.  I was referred to Ogbonna v NMC [2010] EWHC 272 (Admin) at paragraph 19.  The solicitor’s file, 6/6 of process, related to the preparation of the disposition by the late Mr Kennedy.  A surviving partner in his firm, Mr Duff, had said that these were all the relevant records there were.  He conceded that he would have expected to have seen at least a terms of engagement letter.  What was apparent from the affidavit was that Mr Kennedy had no actual recollection of the circumstances surrounding the granting of a disposition but was relying on what he said would have been in accordance with his usual practice.  In Jackson and Powell – Professional Negligence (7^th ed) 11-182 it is stated:

“However admirable and comprehensive the advice which a solicitor gives, it is of no benefit to his defence unless it can be proved what advice was given.  The solicitor is unlikely to recall after a period of several years what advice he gave to his client on a routine matter.  The best he can do is to describe his usual advice in the particular circumstances or to speculate as to what he ‘must have said…’”

 

While the defender and his daughter spoke to the intention of the deceased having been to change her will, the preparation of the disposition must have followed some advice and discussion.  There was no evidence as to what these were.  As far as the solicitor’s file went, it even raised a doubt as to who Mr Kennedy considered his client to be.  The only letters sent by him were sent to the defender.  The fee note was blank as to whom it was being issued.  The deed was registered on behalf of three persons.  In all the foregoing circumstances no weight should be attached to the affidavit.

[63]      The remaining non-medical evidence did nothing, it was submitted, to put any serious question mark over the evidence of Dr Lynch and Dr Clarke.  The evidence of the defender’s children and his friend Mr McPhee that the deceased’s condition never changed was contradicted by the medical records which indicated that members of the family had spoken of the deceased’s mental decline when the deceased was admitted to hospital.  In Dr Roberts letter to Dr Macleod typed 17 December 2007, 7/17/1, it was stated that “It became clear on discussion with the family that there had been a significant decline over some years which they had coped with without requesting any help”.  Reference was made to 6/3 of process, the declaration and indemnity form dated 4 August 2004 in respect of accounts held in the name of Joseph Gallacher at the Halifax bank.  It was apparent that it had been anticipated that the deceased would be a co-signatory.  However next to the designation of the deceased appeared “has dimensia unable to sign”.  The defender accepted that he had signed that document.  In his evidence he also accepted that he had falsely declared that he and the deceased were either the executors or the only persons beneficially entitled to the funds.  He was unable to explain why the manuscript words next to the deceased’s name were inserted, or by whom.  On the face of the evidence the court was entitled to infer that the information, which led to those words being added, came from the defender or a member of his family.

[64]      On 30 September 2004 the deceased granted a power of attorney, 6/6 of process, which was registered with the Office of the Public Guardian.  That might suggest, it was submitted, that at that time there was at least some concern as to the deceased’s wellbeing and capacity to look after her own affairs.

[65]      The evidence of the pursuer’s witness Edwina Nelson was that she had for some time had concerns about the mental wellbeing of the deceased.  She, with her late husband, had spent a lot of time in the company of the deceased prior to her husband’s death in 2006.  The following picture emerged from this witness’s evidence.  She had stopped taking the deceased on holiday as a result of an incident where the deceased had threatened her with a stick and accused her of stealing a ring which she herself was wearing.  The deceased’s ability to read and understand what she was reading had declined.  She was not to be trusted with money because she had been putting bank notes in tissues and throwing them into a bin.  The deceased had stopped going to the bingo because she could no longer fill up the bingo cards.

[66]      It was submitted that there was a sufficiency of credible and reliable evidence that the deceased did not have the necessary mental capacity at the relevant date to grant the disposition and that, accordingly, the pursuer’s first plea-in-law should be sustained. 

[67]      Counsel went onto submit that if, on the other hand, the court did not consider that it could arrive at that conclusion the court should, nevertheless, find that the disposition had been obtained through facility and circumvention.  The law on this topic, it was submitted, was fully set out in MacDonald v McCallum 29 August 2003 (unreported) at paragraphs 10, 12 and 17.  There was evidence, it was said, of the deceased being in a weak or facile state.  She was very elderly, was clearly suffering from health problems and had been displaying erratic behaviour.  That evidence demonstrated facility.  As regards circumvention, there was nothing remotely normal about the preparation of the disposition and its execution.  The defender, in his pleadings, had averred that the disposition had been prepared on the basis of a long held understanding that “the subjects were meant to be held for and belonged to the Gallacher family who formed, or had formed, part of the household of the subjects”.  The defender’s pleadings then continued, the defender was “the last remaining Gallacher member who formed part of the household in the subjects”.  The evidence, however, from the defender was that he gave up living in the subjects in 1981 when he moved to 60 Hillend Road, Clarkston.  Moreover any such “understanding” was not reflected in the fact that the 1981 will of the deceased (7/12 of process) had involved a direction that the family home should be sold and the proceeds divided among the beneficiaries.  Moreover the existing will of the deceased, 7/13 of process, did not suggest that the preservation of the home was at the forefront of the mind of the testatrix.  It was executed on 10 November 2004.  It left the home to the deceased’s mother, and in the event of her predeceasing the deceased, which did in the event happen, the subjects were to be sold and the proceeds divided between the defender and his brother Francis.  Francis died in 2006.  As a result there was a problem with the 2004 will as, in the event of the deceased’s sister dying before the deceased, half of the estate would have fallen into intestacy.  There was no reliable evidence, it was submitted, explaining how any instructions to change the deceased’s will were, in the event, changed to the instruction of the preparation of the disposition.  The defender said, in evidence, that it took a matter of weeks for the disposition to be prepared.  He said it was delivered to the deceased for signature in early June.  She did not immediately sign it.  The witness to the disposition gave evidence that he was asked by the defender simply to sign the disposition as a “witness to the document”.  The court had heard the witness Stephen Lawrence give evidence that he had no recollection of whether or not the disposition had been signed when he adduced his signature as a witness.  He had no recollection of seeing the deceased on the day in question.  In his pleadings the defender admits that:

“The witness was asked to witness the Disposition outwith the presence of the deceased.  Admitted the witness did not see the deceased sign the Disposition nor did she acknowledge her signature to him.  Admitted the witness did not have the mandate of the deceased to sign.”

 

Although in evidence the defender, when these pleadings were put to him admitted that the deceased did not acknowledge her signature to the witness, he denied the remaining averments.  The defender’s wife gave evidence that the deceased executed the deed in the presence of the witness.  She had denied the averments of the defender just referred to.  The solicitor’s file revealed that the disposition was sent to the defender as was the solicitor’s account “for your attention”. 

[68]      The granting of the disposition was advantageous to the defender.  There was no explanation, in evidence, as to why the deceased should wish the family of the defender’s deceased brother not to benefit in a share of the subjects on her death.  There was no reason or explanation for the deed not having been properly witnessed or acknowledged.  The evidence was that after its delivery to her the disposition lay in the home of the deceased unsigned for some time.  The issue was forced by the defender who was also her attorney.  The circumstances of the deceased apparently signing the disposition were in themselves unusual.  The signing apparently took place during or after a trip to Largs with the defender, followed by an invitation to Mr Lawrence to witness the document.  The keeping secret by the defender of the deceased’s death from other members of the family including his deceased brother’s widow was not sufficiently explained.  All of the foregoing would entitle the court to reach the view that the defender had been involved in circumvention in bringing about the execution of the disposition by the inducing of the weak deceased to grant a deed which was clearly in his favour.

 

Submissions on behalf of the defender

[69]      Counsel for the defender invited the court to repel the pursuer’s first, second, third and fourth pleas in law and to sustain the defender’s second, third, fourth and fifth pleas in law.  The defender’s counsel’s submission commenced by attacking the position of the pursuer.  She had sought to be appointed executrix-dative to the deceased and stated in her application in that respect that she “reasonably believed that the deceased had died intestate”.  She had made no enquiry as to whether the deceased had left a will.  To be appointed executrix-dative she must have deponed that there was no will.  Her evidence was that “we just thought that when the last person who had title to the subjects died we would all get a share”.  This was, it was submitted, an unreasonable belief on her part since on her own evidence the pursuer had next to nothing to do with the deceased.  She was, it was submitted, in raising the present proceedings involved in an “opportunistic endeavour”.

[70]      Counsel for the defender invited the court to hold the witness Edwina Nelson to be unreliable and incredible although I am bound to say that I am not satisfied that he presented any substantial basis for inviting the court to reach such a conclusion.

[71]      In dealing with the medical evidence, defender’s counsel founded particularly on the fact that the deceased, while in hospital, was suffering from a urinary infection.  Dr Lynch, it was submitted, had given insufficient weight to this fact as something which may have given symptoms similar to those of a person suffering from dementia or a dementia like illness or alternatively may have accelerated a previous mild condition of that sort.  Criticism was also made of Dr Clarke for having failed to make a fuller investigation than she did before reaching her initial views as to the deceased’s mental condition.  There was evidence of the deceased being hostile to doctors and not wanting to be in hospital all of which may have accounted for some of her erratic and extreme behaviour while in hospital.

[72]      In the course of his submissions the defender’s counsel appeared to accept that the deceased probably had suffered from what he described as “mild” dementia in the course of 2007 and did accept, in accordance with the defender’s own medical evidence, that by October 2007 the deceased was suffering from severe dementia.  It was accepted by defender’s counsel that Dr Routh had misdirected himself at times, in addressing his position as an expert witness, as being to decide whether there was enough information to displace a presumption of capacity in the deceased in July 2007.  He did look at the evidence in the round, however, and while Dr Lynch’s evidence that dementia progressed steadily after its inception might have been, in ordinary circumstances, acceptable he had, in the present case, not sufficiently taken into account the effect of the deceased’s infection as possibly resulting in an acceleration of any such condition.  Counsel for the defender submitted that Dr Lynch had also over-played the importance of the deed in question.  It was fairly straight-forward and reflected what the evidence was as having been the settled will of the deceased.  Capacity being “decision specific” the deceased did not, it was contended, “need much capacity to understand the nature of the transaction she was entering into because it was not complex”.  She had done so under the wing of a solicitor who had attended to her legal affairs for decades.  Counsel for the defender relied strongly, in his submissions, on the content of Mr Kennedy’s affidavit particularly where it was to the effect that he would have had no concerns about the deceased’s capacity.  I was asked by counsel to treat the information in the affidavit as if it were the evidence of Mr Kennedy given by him in the witness box.  I was also invited to hold the defender and his lay witnesses as credible and reliable.  In the foregoing circumstances the pursuer had, it was said, failed to demonstrate the deceased was incapax at the date of execution of the disposition. 

[73]      Turning to address the case of facility and circumvention, counsel in the first place, pointed to the paucity of averments, on behalf of the pursuer, to support such a case.  In any event, the evidence was not such as to demonstrate that the deceased was facile at the relevant date.  On this chapter counsel relied on the evidence he had already referred to in his submissions regarding the capacity of the deceased and the evidence of the defender and his non-medical witnesses as to the condition of the deceased’s health at the date of the execution of the disposition.  There was, in any event, no evidence at all to support a case of circumvention as perpetrated by the defender.  The defender’s actings reflected real family life.  In any event Mr Kennedy, the solicitor, had stood between the defender and the deceased to safeguard her interests.  The deceased, in granting the disposition, was not doing something contrary to her own interests.  She was in her nineties.  She simply did what many people do - handed over her property to younger relatives, while making provision for herself and her sister.  This reflected her wishes.  While the words “love, favour and affection” were not employed in the disposition these could be implied, standing the evidence taken as a whole.  The evidence was that the defender and his family were not seeking to take advantage of the deceased but were her source of comfort and support.  Circumvention, it was submitted, was deceit or fraud, see Stair 1, 9, 9 Walker Civil Remedies 154.  There were insufficient averments as regards deceit and/or fraud on the part of the defender.  There was no evidence to that effect.  There required to be express averments of the means used to perpetrate the deceit, or at the very least of the type, or nature, of the fraud of which the complaint was made - McDougall v McDougall’s Trustees 1931 SC 102 at 116.  It was not even clear which person, or persons, it was being contended, was, or were, the alleged perpetrators of the acts amounting to circumvention.

 

Decision

[74]      The primary issue for the court to determine in this action is whether or not, on the balance of probabilities the deceased, as at the date of the disposition, 2 July 2007, had the necessary legal capacity to grant that deed, the effect of which was to dispone, inter vivos, the only asset of hers of any significant value namely her home.  That issue has to be determined in a context where the medical witness for the defender Dr Routh accepted that, as at October 2007, the deceased was suffering from advanced dementia.  In so accepting he was in agreement with the pursuer’s medical witnesses.  The question therefore becomes more refined and it is whether, notwithstanding the accepted fact that the deceased was suffering from advanced dementia in October 2007, she, nevertheless, had the mental capacity, sufficient on 2 July 2007, for her to be considered as having been capable of fully comprehending the nature and effect of the granting by her of the disposition in question.  Both Dr Lynch and Dr Clarke gave straightforward evidence, as set out above, to the effect that, having considered the medical records for the deceased and, in Dr Clarke’s case having seen and discussed matters with the deceased in September/October 2007, on the balance of probabilities, the deceased would not have had such capacity on 2 July 2007.  Both of these witnesses are well experienced in dealing with elderly patients suffering from cognitive decline.  I found them to be both credible and reliable and, in no material respect, were the opinions set out by them in their written reports displaced in cross examination.

[75]      I had, on the other hand, some difficulty with Dr Routh’s evidence.  He was, no doubt, doing his best to assist the court but, as has been noted, he approached matters on the basis that the pursuer had to overcome some presumption and was, as a consequence, desiderating a level and kind of evidence which he considered was necessary to rebut that presumption.  His primary position appeared to be that he could not say what the mental condition of the deceased would have been at the time she signed the disposition.  His evidence also relied heavily on the significance of the deceased having suffered from a UTI.  That conclusion, the witness, as has been seen, said could have produced a form of delirium which would have exhibited itself in behaviour which the medical staff might have attributed to some form of dementia.  Alternatively the infection might have caused a sudden and significant deterioration in such a condition which had previously been mild.  Both Dr Lynch and Dr Clarke were asked to address these possibilities.  While they recognised that the deceased’s infection may have caused additional confusion in the deceased and while they accepted, fairly, that an event such as the infection might have had an effect in accelerating cognitive decline in a woman of the deceased’s age, they were, at one, in saying that, having regard to all the circumstances, the deceased was, on the balance of probability suffering from advanced dementia before contracting the infection.  The medical evidence given by the pursuer’s medical witnesses, I found to be compelling and persuasive both in content and in the manner of its presentation.  It seemed to me that they set out a reasonable basis, having regard to all the material before them, for drawing the inference, that standing the agreed state of advanced dementia the deceased was suffering from in October 2007, the appropriate mental capacity in July 2007 for granting a disposition of the kind with which the present proceedings are concerned, did not exist. 

[76]      The position of Dr Lynch and Dr Clarke, in my opinion, was supported or confirmed by other evidence before the court which appears to me to be indicative of the deceased having, for some time prior to 2 July 2007, been suffering from significant mental decline.  That evidence itself seems to me to contradict, and put a serious question mark over, the reliability and/or credibility of the evidence of the defender himself, his wife, daughter and son.

[77]      As previously noted the evidence of the defender’s daughter was taken on commission and the commissioner in his report indicated that he found her credible and reliable.  He did not, of course, have the advantage that the court has had of hearing all the evidence in the case.  It appears to me quite clear that the defender, his wife and children, in giving their evidence were seeking to present a very reassuring picture of the deceased’s mental health as suffering from no decline at all before and up until the time of the granting of the disposition.  Indeed some of their evidence sought to suggest that even after she had been admitted to hospital the deceased’s mental condition remained good and lucid.  They, no doubt, presented their evidence, in the way they did, fully aware of what the main question in this case was and aware also of the serious consequence for them if the disposition required to be reduced.  The defender’s position in all of this was supported by his long standing friend Mr McPhee.  That witness only visited the deceased on an occasional basis and once in hospital.  I did not consider the nature and extent of his time with the deceased assisted me materially in this case.

[78]      As against the somewhat rosy picture the defender and his family members sought to present of the deceased’s mental faculties at the material time was the evidence of the pursuer’s witness Edwina Nelson.  She of course, I recognise, may have an indirect interest in the outcome of these proceedings but not withstanding that, and taking it into account, I formed the view that this witness was a straightforward, albeit forthright person, whose evidence I could accept as credible and reliable.  She and her husband had been in touch with the deceased on a daily basis until 2006 and the death of her husband Francis.  She spoke of the deceased’s mental decline during that time and illustrated this with some graphic examples of how that evidenced itself.  She, herself, was familiar with dementia as it was a condition from which her own mother had suffered.  She continued to see the deceased after her own husband had died, although much less frequently, but, by 2007, she told the court that she was of the opinion that the deceased was suffering from some form of dementia. 

[79]      The pursuer herself, frankly admitted that she had not been in touch with the deceased for a long time prior to her death.  While an attack was made on her credibility and reliability in that she applied to be appointed as the executrix-dative to the deceased by declaring that the deceased had left no will when in fact she had, I did not consider that the criticism of the pursuer made by defender’s counsel on the basis that it was made, in that respect had any bearing on the issue which I have to determine. 

[80]      Other adminicles of evidence, however, do, in my judgment, undermine the defender’s position.  The contemporary medical records of the deceased at the time of her admissions to hospital and thereafter are of assistance.  On her admission to hospital on the first occasion it is recorded that “according to nephew [ie the defender] apart from dementia nil else”.  Dr Clarke recorded that the deceased’s nephew “has increasing concerns about her being at home”.  The letter from Dr Roberts of 8 October 2007, as previously noted, stated “significant dementia with a crisis developing just prior to admission when she became quite aggressive to her sister as she was trying to wander from the house”.  Dr Roberts’ discharge letter of the deceased from the Southern General Hospital on 10 December 2007, as has been seen, was, inter alia in the following terms:

“It became clear on discussing with the family, that there had been a significant cognitive decline over some years which they had coped with without requesting any help.  She had a habit of frequently using the toilet and although she had initially been the main cook and housekeeper in the house her 90 year old sister had gradually been taking on these tasks.  She was disruptive at night causing some degree of concern and stress on her sister.”  (Emphasis added)

 

Dr Roberts was not led as a witness but medical records including this letter were agreed as between the parties.  That being so, what the defender and his family were saying about the deceased’s mental condition in 2007 in evidence before this court was in stark contrast to what apparently was being conveyed to Dr Roberts at the material time.  The defender’s position, for example, in evidence was that the deceased, apart from suffering from arthritis, was “fine” in mid-2007. 

[81]      The document 6/3 of process has also assisted me in assessing credibility and reliability of the evidence of the defender and his family.  The defender accepted that he was party to that indemnity form.  He accepted that his declaration on that form was false in that neither he nor the deceased were the executors of the person whose funds were being uplifted nor were they the only persons beneficially entitled thereto.  More importantly, I am satisfied that he word “dimensia”, as it appears on the form next to the deceased’s name, was either written by the defender himself, or came to be written, as a result of his giving information to the writer of the word, which allowed them to place it on the form.  The reason for it being added was likely to be that an explanation was being given as to why the deceased at that time, 4 August 2004, could not attend and adhibit her signature to the form.  The defender could provide no explanation as to why the form could not have been taken to the deceased at her home for signature if she was otherwise considered mentally capable of doing so.  If, however, the position was that the defender did consider that the deceased was suffering from dementia in 2004 that would simply accord with the history of he and his family reporting in 2007 that the deceased had suffered from such a condition “for a number of years”.

[82]      The evidence of the defender, his wife, daughter and son to the effect that the deceased’s mental health gave no cause for concern right up until her admission to a nursing home is not compatible with what is said in 7/19/5, Dr Roberts’ letter late October 2007 to Dr Julia Gray where she wrote:

“She has significant dementia contained within her family setting, as she lives with a 91 year old sister.  A crisis developed just prior to admission where she became quite aggressive towards her sister as she was trying to wander from the house… Additionally the nephew thought he had an enduring Power of Attorney but it is clear that he does not and therefore the family will need to progress to a Guardianship for placement and I have suggested to the son that he liaises with East Renfrewshire Social Work to achieve this… The nephew has identified a nursing home that he is aware of that has a dementia unit in Lindsayfield in East Kilbride.  I think he has had friends who have had elderly demented relatives who he feels have been managed well there.  I think he is of the view that she might be coped with better there than she is currently in her ward and wondered if there was any way we could facilitate discharge directly to there, particularly as she was discharged home…”

 

The foregoing evidence and what is recorded generally in the medical records sits uneasily with the defender’s evidence that he was not concerned about the deceased’s mental health even when she was in hospital nor that there had been any decline in her mental capacities, his only concern being her lack of mobility.  Nor does it sit well with the defender’s evidence that there was absolutely no problem with the deceased when she was returned to her home from hospital.  Similarly the other evidence in the case which I have just set out, and which I have no reason to regard as unreliable, contradicts the evidence of the defender’s wife who was adamant, in evidence, that she had seen no mental decline in the deceased before the deceased went into hospital and that while in hospital there was no great change evident in her mental health.  The defender’s son’s evidence to the effect that he saw no deterioration in the deceased’s condition even after she had been admitted to the nursing home simply does not square with the other evidence in the case which I have set out above.  Nor does the evidence of the defender’s daughter that any mental deterioration in the deceased’s mental condition was only observed a year or so after her admission to the nursing home. 

[83]      The credibility and reliability of the defender and his wife were also undermined by their position, in evidence, regarding the question as to the witnessing of the disposition by Stephen Lawrence.  In Answer Two as has been seen the defender admitted that the witness was asked to witness the disposition out with the presence of the deceased and that the witness did not see the deceased’s sign nor did she acknowledge her signature to him.  Those admissions remain on record.  Counsel for the defender did not seek to have them removed.  Notwithstanding that, the defender, as has been noted, in examination in chief, said that Stephen Lawrence was standing behind the deceased in the defender’s living room when he was asked to witness the disposition.  The defender said he was not sure if the witness had seen the deceased sign the deed but it was a small room where all of this took place.  He accepted that the deceased did not acknowledge her signature to the witness but denied that the witness signed the document outwith the presence of the deceased.

[84]      The defender’s wife, Susan Nelson, who has been employed as a legal secretary for 40 years and who informed the court, in that capacity, that she had typed hundreds of dispositions and had witnessed thousands of documents, adamantly stated, in cross examination, that the witness had seen the deceased sign the disposition saying:

“I am certain of that – Mary signed it and my husband asked my daughter’s boyfriend Lawrence to witness it.”

 

I have already indicated that, in this matter, I found Mr Lawrence’s evidence credible and reliable.  I, therefore, reach the view that the position adopted by the defender and his wife regarding this matter puts a further question over their credibility and reliability.

[85]      The defender’s counsel sought to take some support for the defender’s case from the affidavit of Mr Kennedy.  It is worth noting that Dr Routh said that he had, to some extent, at least, taking the stance he did, on the basis that a solicitor had been involved in the preparation of the disposition and he had, it seems, assumed that, accordingly, some assessment of the deceased and her capacity to grant the disposition would have been provided by that solicitor.  In the circumstances of this case, however, I am unable to place any weight on the material contained in the affidavit for ultimately deciding the key issues in disputing this case.  The affidavit raises many questions which the court would have wished to have answered by Mr Kennedy.  Fairness also would have required the opportunity to be given to the pursuer to have Mr Kennedy cross examined in relation to what was said in the affidavit as it clearly was highly germane to the issue in the case.  No explanation, at all, has been given as to why his evidence was not taken on commission when it appears that he was alive for some time after the proceedings were raised.  It is noteworthy that Mr Kennedy, an elderly man, had no recollection of the particular instruction or of his implementation of them but simply, in the affidavit, relied on what he considered to be his usual practice.  The problems associated with such evidence are properly highlighted in the paragraphs in Jackson & Powell, cited to me by counsel for the pursuer.  Its worth is reduced, in my judgment, further, if it cannot be subjected to cross examination.  There is furthermore, ample evidence, which I have endeavoured to summarise, to suggest, at least, that Mr Kennedy’s assumptions, at the date of the affidavit, regarding the deceased’s mental capacity at the time of granting the disposition were not securely based.  In all the foregoing circumstances I do not consider that this affidavit is of any proper evidential value in determining the present case.

[86]      There are some other features of the evidence in the case which were relied upon, perhaps, by counsel for the pursuer more in relation to his case based on facility and circumvention but which also to some extent, in my view, might be said to put a question mark over the reliability of the defender’s case looked at as a whole.  For example, as counsel for the pursuer pointed out, the defender contends that the disposition was prepared because of a long held understanding that “the subjects were meant to be held and belonged to the Gallacher family who formed or had formed part of the household of the subjects” (see Answer Two page 10 of the record) and that he was the last remaining Gallacher member who formed part of the household of the subjects (see page 11of the record).  But the defender’s own evidence was that he had left the subjects in 1981 and resided thereafter at 60 Hillend Road, Clarkston until October 2008.  Any such “understanding” was not reflected in the deceased’s 1981 will 7/12 of process, which involved a direction for the family home to be sold and the proceeds divided among the beneficiaries named in the will.  The deceased’s extant will 7/13 of process does not reflect the alleged “understanding”.  That will was executed on 10 November 2004.  It left the subjects to the deceased’s sister.  In the event of the deceased’s sister predeceasing her, which occurred in April 2008, the subjects were to be sold and the proceeds available and distributed between the defender and his brother Francis.  It was true, it seems, that on the death of Francis in 2005 a potential intestacy arose which might have been appropriately dealt with by the preparation of a new will.  There was, however, no explanation given for the deceased instead granting the disposition of the subjects which excluded Francis’ family benefiting from the only material asset available on the deceased’s death.  The evidence was clearly to the effect that the deceased and Francis had been close until his death.  No explanation at all had been given to the court as to why the deed in terms of the disposition was granted, with a special destination in the defender’s favour, having been prepared instead of a will being prepared.  There had been a delay of some weeks before the deceased apparently signed the disposition.  The whole circumstances surrounding its instruction and signing were driven, it seems, by the defender, and in circumstances, where the court could conclude that the witness did not see the defender signing or acknowledging her signature.  That was in a situation where the defender and his wife gave evidence that they were fully aware of the legal requirements regarding the witnessing of such a document.  In the event it appeared, that the defender, in his evidence, was accepting that the only person who saw the deceased actually sign the disposition was himself.  The defender clearly benefited from this deed at a time when he held a power of attorney in respect of the deceased.  The defender and his family moved into the subjects in October 2008 although the deceased did not die until 21 March 2011.  No satisfactory explanation had been given to the court, as to why the other family members, particularly his brother’s widow, were not informed by the defender of the deceased’s death and did not learn of it until after the deceased’s funeral.  The court would be entitled to reach the view that that was in part in an attempt to avoid questions being asked about the deceased’s estate. 

[87]      As I have said these features of the case were relied upon by counsel for the pursuer in his submissions on the case based on facility and circumvention.  Nevertheless I am inclined to treat them as supporting the conclusions I have already arrived at in relation to the credibility and reliability of the defender and his family members on a case based on lack of capacity. 

[88]      In all the foregoing circumstances I have reached the clear conclusion that, on the evidence, the pursuer has established her case that on the balance of probabilities, the deceased, on 2 July 2007, did not have the necessary capacity to grant the disposition.  I will accordingly grant decree in terms of the first conclusion and reduce the disposition (which has already been produced).

[89]      In the circumstances it is strictly unnecessary for me to deal with the case based on facility and circumvention.  I will, however, say a few words about that case.  In the first place it seems to me that the defender’s counsel was well-founded in submitting that, as a matter of pleading, the pursuer’s case was lacking in specification.  While I am satisfied that, on the evidence, facility at the material time has been made out, I am not satisfied that the pursuer has set out averments sufficiently specific in the circumstances to support the existence of circumvention, or that, in the event she has placed before the court sufficient evidence to support circumvention on the part of the defender or anyone else in this case.  While, in my view, the circumstances surrounding and leading up to the deceased’s execution of the disposition do raise some unanswered questions and, as I have already indicated, in themselves raise questions about the credibility and reliability of the defender and his family, I am not satisfied that they amount to establishing circumvention which is said to be “a deceit or fraud”.  There must be clear averment by which person or persons the deed is alleged to have been impetrated see Baird v Harvey’s Trustees (1869) 20 D 1220 and while it is not necessary to aver distinct instances or practices directed against the facile person:

“If the facts satisfy the jury that there was in such a part a motive to mislead and induce him to enter into the transaction, either for his own benefit or for the benefit of someone whose interest he was promoting, and that only under persuasion and untrue representations acting on a mind facile or nervously anxious, from disease, on the subject, could have brought about the result then it is for the jury to say whether they draw from the whole case the inference of circumvention” (see Clunie v Stirling (1854) 17 D pages 17 and 18)

 

I am not satisfied that either the requirements of pleading, or proof, have been met in this case to justify the pursuer’s case based on facility and circumvention.  It is, in addition, to be noted that there is a question as to whether the deceased could be said to have at least, strictly speaking, suffered lesion.  In McKay v Campbell 1966 SCT 37 at 249 it was held that it must be averred that the party suffered lesion by granting the deed complained of.  In my judgment the pursuer failed adequately to address this aspect of such a case. 

[90]      In the whole circumstances, therefore, I repel the pursuer’s third plea in law, repel the defender’s pleas in law and grant the reduction of the disposition in terms of the first conclusion.  Parties were agreed that expenses should follow success and that any award against the defender should be as an assisted person.