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ALEXANDER DAVID NIVEN AND ANOTHER AGAINST IRENE ROBERTA HUNTER-FORBES NIVEN [2023] ScotCS CSOH_57 (24 August 2023)
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_57.html
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[2023] CSOH 57,
[2023] ScotCS CSOH_57,
2023 GWD 35-291
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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 57
A71/22
OPINION OF LORD MALCOLM
in the cause
ALEXANDER DAVID NIVEN AND ANOTHER
Pursuers
against
IRENE ROBERTA HUNTER-FORBES NIVEN
Defender
Pursuers: Tosh; Anderson Strathern LLP
Defender: A Stevenson (sol adv); Waddell & Mackintosh
24 August 2023
[1]
This case concerns an allegation that Irene Niven forged her late husband's signature
on a codicil altering his will. An action seeking reduction (meaning quashing) of the codicil
has been brought by David Niven and Carole Melaisi who are the children of the late
Alexander Niven and his first wife. Irene Niven is their stepmother. She has defended the
action.
The background circumstances
[2]
In 2016 Alexander Niven made a will appointing his wife and his solicitor,
Grant Johnston, as executors and trustees. He owned a one-half share in the matrimonial
2
home. Irene Niven owned the other half share. So far as the house was concerned, in
summary the will provided that if he died before his wife the trustees were to hold his
interest in the property for her in liferent. On her death or disavowal of the liferent it would
be shared equally between his two children. The trustees were directed to give effect to any
clearly expressed subsequent testamentary writings however informal so long as they were
signed by Alexander Niven.
[3]
Alexander Niven died on 27 April 2020. The trustees were confirmed in November
of that year and proceeded to perform their executry duties regarding the distribution of the
estate. In October 2021, when these were more or less complete, in a telephone conversation
Irene Niven informed Mr Johnston of a document bearing the title "Codicil/Letter of Wishes
to my Will". Amongst other things it stated that Alexander Niven bequeathed the house to
his wife in its entirety. If she predeceased him, on his demise one half would go to Irene's
son, Stuart Niven, with the remainder split equally between David and Carole. Earlier
writings regarding the property were revoked. In the third paragraph Irene Niven
bequeathed her interest in the property to her husband, and if he died before her, on her
death it would be shared between David, Carole and Stuart in the same percentages. The
codicil bears to have been signed by Alexander Niven at Jedburgh on 22 January 2020. It is
also signed by Irene Niven and witnessed by a Carly March.
[4]
An audio recording and a transcript of the telephone conversation between
Irene Niven and Mr Johnston, who was also her solicitor, have been produced. (At the start
of the proof I rejected a submission that this material was privileged.) Regarding the codicil,
Irene Niven explained that her husband was agitated because he was not leaving Stuart
Niven any money. After a chat they decided to leave that as it was. However he had never
liked the liferent. They should control the house and their money in it. He was very
3
agitated. To appease him the codicil was drawn up. Irene Niven said that much later she
saw the document when going through her files. She was about to tear it up, but at that
time she was hoping to build a lodge in the garden of the house and wondered if she could
leave the value of it to her son. It would be her funds invested in it. Mr Johnston made it
clear that he could make no comment without seeing the document. Irene Niven stated that
she would send it to him. The discussion then turned to matters concerning her will.
[5]
On 20 October 2021 Irene Niven emailed Mr Johnston and stated that she would
send a copy of the codicil to him the next day by recorded post. She wanted confirmation
that it was legal. She said that she wanted to change the third paragraph which is the part
where she bequeathed the house to David, Carole and Stuart. After receiving the document
Mr Johnston copied it to David and Carole. Subsequently he resigned as executor and
trustee. A disposition was executed on 21 January 2022 and registered the following month
in which, as by then sole executrix nominate of her late husband, Irene Niven conveyed his
one-half share of the house to herself as an individual. Reduction of this deed is also sought.
Failing that Irene Niven will own the property outright and be able to sell it or bequeath it to
whomsoever she chooses.
Why the signature is said to be a forgery
[6]
The basis of the forgery allegation in the written pleadings can be summarised as
follows. A guideline to the signature was marked in pencil, erased and then repeated. It
was then overwritten in ink. The deceased did not so apply his signature. The signature
displays a high degree of tremor, multiple pen lifts, and overwriting, all of which is
consistent with Irene Niven's handwriting. On 26 January 2022 an application was
submitted on her behalf for planning permission for the construction of an accessible chalet
4
in the garden of the house which certified that in the previous 21 days the property was
wholly owned by her. The deceased would attend upon his solicitor and take advice on
important legal matters such as a change to his will. He was a meticulous and careful man.
The document contains simple and obvious errors which he would not have committed.
Only his wife and her son benefitted from the change to his will. A report from a
handwriting expert was lodged in support of the claim that the signature is not that of the
deceased.
[7]
In her written pleadings Irene Niven asserts that her husband intended to change his
will and he signed the codicil. She accepts that normally he would take advice on important
legal matters, however in January 2020 Mr Johnston was difficult to contact. Her husband
knew that he was dying and there was a degree of urgency as to reorganising his financial
affairs. While he was a meticulous and careful man, in the prevailing circumstances he was
willing to alter his will without advice and to permit imperfections, such as leaving pencil
lines, to ensure that his wishes were met. He kept a pencil case and was accustomed to
using both a pen and a pencil. He picked up a pencil and began to append his signature.
On realising his mistake he put the pencil aside and signed again using a pen. The pen had
a clip, but otherwise it and the pencil resembled each other. There was no pencil
"guideline". At the time her husband was almost 86 years of age. He was suffering from a
number of health issues which led to an intermittent tremor and loss of gross and fine motor
skills. He was generally frail. The change to the will did not benefit her son. Reference was
made to a report from another handwriting expert.
[8]
In a case of this kind it is appropriate to set out the evidence heard at the proof in
some detail.
5
The evidence for David Niven and Carole Melaisi
Alexander David Niven (known as David)
[9]
David Niven was the first witness. He is 58 years of age and Alexander Niven's only
son. Carole Melaisi is his sister. The salient parts of his evidence were as follows.
[10]
About five years previously at a hotel in Troon his father told him that, in addition to
a sum of money, his father's half share in the matrimonial home would be split between
himself and his sister. Nothing was said about a liferent. Thereafter he never expressed
unhappiness about his will nor of any desire to change it. Grant Johnston was his father's
longstanding solicitor. On official matters his father would take legal advice. Though
David Niven did not see him as often as he would have liked, he was very close to his
father. They spoke regularly on the phone. His father generally kept good health though it
was deteriorating with a decline in mobility. After his father's death he was sent a copy of
the will. He was not told of any changes to it.
[11]
He attended the wedding of Stuart Niven in June 2021. His sister was unwell and
did not attend. Given the restricted numbers allowed at the wedding a larger party in
celebration was organised for January 2022. Covid 19 was still rife so in about the
November he intimated that he would not be attending this event. Carole did not go to the
party. He was not aware that anyone was upset.
[12]
His father married Irene Niven in the mid-80s. He and Irene have never been close.
They have different personalities. He had no routine contact with her.
[13]
When the codicil came to light he was astonished. His father would never do
anything of a legal nature without involving a lawyer, almost certainly Grant Johnston. In
the document he is designed as David Alexander Niven. His father would not make that
mistake. His father's first name was Alexander as was that of David's paternal grandfather.
6
In the codicil there is an obvious error as to David's postcode. His father was a careful
meticulous man who did things in a measured way with the utmost professionalism. In the
second paragraph of the document regarding his sister's middle name, "Ann" should be
"Anne".
[14]
As to handwriting, his stepmother always had a shaky hand. She has a known
problem with alcohol. The second signature on the codicil was Irene's, but the first was not
that of his father. He had never seen his father with a pencil case. He had seen him use a
traditional lead pencil when doing DIY or on the golf course. When signing a document he
would use a pen, not a pencil.
[15]
When the codicil was sent to him he was flabbergasted that his father would alter his
will without informing him and his sister. Grant Johnston told him that he knew nothing
about it. He said he would resign and seek advice from the Law Society of Scotland. About
a week earlier David Niven and his sister had declined the invitation to Stuart's party the
following January. He was aware that Irene wanted to build in the garden ground. Carole
told him that she was unhappy about this.
[16]
In cross-examination Mr Niven stated that he first learned of the liferent when sent a
copy of the will after his father died. When it was explained, it made sense. It was expected
that Irene could remain in the house. His relationship with her was fractious. She did send
cards to the family. The 2016 will refers to him as "David Niven" but that was because it
was written by Mr Johnston; his father would use "Alexander". To his knowledge his father
did not use computers.
[17]
In re-examination, when asked why he said that the relationship was fractious, he
said that he and Irene did not see things in the same way. He regularly received late night
7
calls when she was under the influence of alcohol. His father could still do the garden and
get out in the car. He was not housebound.
[18]
David Niven gave his evidence in a calm and measured manner, and while plainly
he has a direct interest in the outcome of the case, I have no difficulty in accepting him as an
honest and truthful witness.
Carole Anne Melaisi
[19]
Carole Melaisi stated that she was close to her father. She visited him often. He was
"old school" and paid attention to detail. On 19 April 2020 he discussed his will during her
last visit before his passing. Regarding the house, he said that one half would go to Stuart
and the other half to David and herself, and that Irene could stay there till she died. He
never said that he was unhappy about the will or wanted to change it. His birthday
in February 2020 was celebrated at a lunch at a hotel. By that time his walking was slow, but
cognitively and regarding motor skills he was fine. On 20 December 2019 he attended a
ballet in Edinburgh and stayed overnight in a hotel. During the 19 April visit he ate his
lunch without any need for assistance. There was nothing wrong with his fine motor skills
and no sign of a tremor. His walking was slower but he was not generally frail.
[20]
Grant Johnston was the family lawyer. Regarding the distribution of the estate he
informed her of how the will dealt with the house. He made no mention of any changes to
the will.
[21]
Irene Niven was very angry that Carole's children did not attend her son's wedding.
She ranted and raved at Carole's daughter. This was not out of character. She herself had
experienced her stepmother's manipulative and controlling behaviour.
8
[22]
Regarding the codicil, her father would have used Grant Johnston as the first port of
call. His signature is "obviously" Irene's writing, with a tremor. Her father would never
have used Carly March, who cleaned the house, as a witness for anything of importance.
The spelling was incorrect, for example regarding her middle name. Her father would not
get his son's name wrong. He paid attention to detail. She had never seen her father use a
pencil. The document "absolutely stinks". On its receipt she was bewildered, flabbergasted
and angry.
[23]
In cross examination, when asked about the 19 April 2020 conversation, her father
said that one half would go to us, one half to Stuart. Her father had good and not so good
days. He was fine during that visit. Subsequently he had a fall, injured his head, and died
eight days later.
[24]
Carole Melaisi was a more obviously partisan witness than her brother. I have
reservations as to the conversation during her last visit to her father. She was keen to get it
out at the start of her evidence, but when cross-examined on the matter seemed less
confident.
Dr Rayner S Lazaro
[25]
Dr Lazaro has been a GP for 15 years. He spoke to a report he had prepared on the
instructions of the solicitors for David and Carole. He was asked to review
Alexander Niven's medical records and advise as to his medical condition prior to
22 January 2020 (the date on the codicil). In particular, were there entries demonstrating
medical conditions which could have affected his fine motor skills, particularly resulting in
an intermittent tremor? Was it likely that a deterioration in his health could explain the level
9
of tremor shown in the codicil signature when compared with earlier signatures?
(Understandably the witness declined to address this last question.)
[26]
Dr Lazaro's evidence can be summarised as follows. In 2018 and 2019 Mr Niven had
various health problems. In June 2019 he was considered fit for a hernia operation,
suggesting that he was not frail or poorly at that time. The symptoms noted in July to
December 2019 are fatigue and weight loss. An entry in the records dated 28 January 2020
was the earliest reliable clinical opinion that there was an overall deterioration in his
functional capacity. Thereafter, because of his cancer, his condition was deteriorating
rapidly. By 23 February there was clear evidence of frailty, loss of muscle mass and
tiredness which would have had significant effects on his gross and fine motor function.
Then there was a rapid decline into a terminal illness. In March/April there is definite
evidence of general motor function loss, including poor mobility and falls with injuries.
[27]
The main factor likely to affect his gross or fine motor skills in January 2020 was
muscle mass loss and tiredness caused by the lung cancer. It would be beyond Dr Lazaro's
remit to make a judgment as to the extent of this functional loss, thus he had noted the
clinical records from around that time. There was no documented evidence of a tremor such
as might affect Mr Niven's signature, nor that neurological deficits following suspected
strokes caused motor function loss. Nothing in the ophthalmology reports suggested that
glaucoma was causing falls.
David William Bogle
[28]
David Bogle is a sole trader who repairs computers. Irene Niven has been a
customer for some years. She has experienced minor issues with her laptops. She obtained
her current laptop in, he thinks, February 2020. He set it up for her. He copied family
10
photographs from the old laptop onto the new one. There were other files on it but he was
not aware what they were. He was not asked to wipe the old laptop which he returned to
Mrs Niven.
Grant Johnston
[29]
Grant Johnston is a solicitor specialising in private client, wealth planning and
residential conveyancing. He first acted for the late Mr Niven in the 1990s. He came to
know him reasonably well and they met on numerous occasions in respect of legal matters.
Mr Niven was a careful and meticulous person. Mr Johnston had prepared Mr Niven's will.
He received the codicil on 21 October 2021. Previously he had the already mentioned
telephone conversation with Irene Niven. She was intending to build a lodge at the
property and she wanted to leave its value to her son Stuart. This would require a change to
the terms of the third paragraph of the codicil. Mr Johnston did not prepare a new will for
Irene Niven. He resigned as an executor and trustee on 12 January 2022.
[30]
Expert handwriting evidence was led by both sides. It will be dealt with later in this
opinion.
The evidence for Irene Niven
Carly March
[31]
Carly March is 37 years of age. She is a shop supervisor and has 11 cleaning jobs.
She was employed as a house cleaner for Mrs Niven in about 2018, maybe earlier. Before
then she had been a carer for Mrs Niven's disabled son.
[32]
She spoke to being asked to witness the Nivens' signatures. By then she had been
with them for about two years. It was a Monday. They both asked her to do this. They
11
were both fine. Mr Niven was his usual jolly self. His physical health did deteriorate
because of old age. He became frailer. On the day he seemed nervous, maybe embarrassed.
He realised he had signed the document in pencil and rubbed it out. He then signed in pen.
The pen and pencil were similar in appearance. She and the Nivens were at the kitchen
table. After Mrs Niven signed she added her signature as a witness. It all took about ten to
fifteen minutes. The part above the signatures was covered over. The date on the document
was not in her writing. It occurred about then.
[33]
In cross examination she confirmed that Mr Niven wrote his name in pencil only
once. It was like the posh pens you get and was coloured blue or green. She insisted that
she was telling the truth. She had been Stuart's carer and was a Facebook friend. She
stopped being a carer because she had made a mistake. She was convicted of fraud for
using the bank details of people for whom she was caring to benefit herself.
[34]
I discuss Carly March's evidence later in this opinion.
Dr Kevin Buchan
[35]
Dr Buchan is a GP in Hawick. He first met Alexander Niven in 2014 and thereafter
was one of his doctors. He was a lovely patient kind, gentle, and easy to look after.
Dr Buchan spoke to a letter dated 12 July 2022 which he had written to Mrs Niven's
solicitors. Mr Niven died in April 2020 with lung and prostatic cancer. His health had been
failing for a couple of years. The letter stated that Mr Niven deteriorated over a period of
time with muscle and motor skill loss due to a previous stroke and TIA. In evidence he
spoke of Mr Niven becoming increasingly frail. It was not uncommon that a combination of
age and the disease would impact on motor skills and wellbeing. He saw this for himself.
12
[36]
In cross examination Dr Buchan accepted that it was not predominantly him who
had treated Mr Niven. He had not carried out a detailed review of the practice's medical
records concerning Mr Niven. He had referred Mr Niven for specialist treatment for
suspected lung cancer on 13 March 2020. In that letter mention was made of a recurrent
cough and a chest lesion. Otherwise he was "pretty fit and healthy". The witness said that
this was an accurate statement. He accepted that after this Mr Niven's health declined
rapidly.
[37]
When he wrote the letter to the solicitors he was aware of the issue in the case. He
accepted that there was no evidence in the records of loss of fine motor skill. He deferred to
the specialist opinion recorded in the medical records that the November 2016 episode was
paraesthesia which was stroke-like in nature. He accepted that the November 2018 event
may have been the result of low blood pressure rather than a stroke
[38]
While an obviously honest witness, I consider that Dr Buchan was able to contribute
little if anything from his direct personal knowledge as to Mr Niven's writing skills in and
around January 2020.
Irene Niven
[39]
Born in 1946, Irene Niven is a retired business woman and a published author. Her
first husband died in 1983 when Stuart was five months old. She married Alexander Niven
in 1986. He was a company distribution manager who retired aged 52. Their respective
parents had been good friends and she had known his children all their lives. After living in
France she and her husband returned to Scotland in 2010.
[40]
Her husband's health began to deteriorate after he had a stroke in 2016. It affected
his balance and general control. Glaucoma was also a concern. He had borderline diabetes
13
and underwent a hernia operation. In about 2018 his condition deteriorated quite rapidly.
He lost weight and had several serious falls. He developed an intermittent slight tremor.
He became depressed and concerned regarding his health. He still loved his gardening.
[41]
David spoke to his father by phone but had visited only about five times in the last
ten years. They visited him when they could. They saw Carole more often. Irene Niven
was not conscious of a fractious relationship. She was upset that Carole's children did not
attend her son's wedding. She did ask Carole's daughter for an explanation. They agreed to
disagree, but did not end on unhappy terms. Family relations were generally amicable.
[42]
The evidence turned to certain cheques which had been considered by the
handwriting experts. In August 2019 when he was writing well, her husband pre-signed
cheques intended for tradesmen or family members which he could thereafter complete at
his leisure. This was a precaution given his tremor. He was a proud man and did not want
to reveal ailments such as a tremor. In respect of a cheque issued on 14 February 2020, he
was unable to pick up the pen, so she filled it in.
[43]
In January 2020 her husband knew he was dying. With regard to the liferent, he
asked suppose one of us dies and the house has to be sold? Control of the assets would be
lost. They always left houses to each other. Mr Johnston knew they had no intention of
selling the house. They were both shocked at the conditions implied by the liferent and
decided to leave the house to each other. They knew it would be legal if signed and
witnessed. Normally they would contact Mr Johnston, but Alexander was incandescent
about the circumstances and said no, it does not have to be notarised. Alexander
suggested the codicil. She typed the document on a previous laptop which was old and
slow. That evening they printed a copy for each other. He never used computers and never
sent an email.
14
[44]
The next morning the cleaner was asked to witness it. While she (Carly March) had
made a mistake, they found her to be trustworthy and honest. This was done at the kitchen
table. Alexander had been doodling. There was a pen and pencil set. Her husband did not
have a pencil case. This was not a good day for his tremor. He had been practising his
signature. When Carly March arrived he picked up the propelling pencil which was almost
identical to the pen. He was very embarrassed when he realised the error. He erased it and
signed again. She signed it and Carly witnessed it with the substance of the document
covered over. It all took a few minutes. They kept the principal and a copy for each of
them. To her knowledge this was her husband's only signature between signing the
cheques in the previous August and his death.
[45]
Irene Niven was asked about the delay in her production of the codicil. She decided
not to reveal it immediately. Her son's wedding was on the horizon. If David and Carole
knew of the codicil and that she controlled the property they might not attend the wedding.
In October 2021 she wanted to build a lodge in the garden for her tetraplegic son and his
wife. When they were not visiting, it could be let out as self-catering accommodation for the
disabled. This could help Stuart financially. He was unable to pursue his profession and the
Council did not have funds for his care. She was concerned about his financial position. She
stated that her concerns regarding the wedding were proven correct when after the codicil
was revealed several family members did not attend the party in January 2022. This was
disrespectful to Stuart and his wife, and a disgrace on the Niven family name.
[46]
In the course of her cross-examination Irene Niven was informed as to the privilege
against self-incrimination, however she answered every question. Counsel opened by
pointing out that she had been shaking when giving evidence. She agreed that she had been
shaking, but this was caused by the stress of being in court in the witness box. She did not
15
have a persistent tremor only that morning. It was wrong to suggest that in late 2019
and January 2020 her husband's health was good. He was a proud man who tried to
disguise his difficulties. He was able to go to the ballet in the December because she was
with him.
[47]
The codicil was only to take effect when the house was sold. Under reference to the
confirmation of the estate, it was accepted that there had been no mention of the codicil to
Mr Johnston. They had been told that a codicil was separate from the will and did not need
to be notarised. In any event it did not alter the will at all. It was done to protect them if one
died and the house had to be sold. The other conditions remained. They did not fully
understand the liferent clause. The will did not address the position if the house had to be
sold. She did appreciate that under it she would not own her husband's share of the house.
There was no intention to implement the codicil because she had no intention to move from
the property. It was accepted that the estate had been wound up by the time she told
Mr Johnston about the codicil.
[48]
Irene Niven was pressed as to inconsistencies between her evidence and her written
pleadings. She said that she had suggested contacting Mr Johnston but her husband, who
was incandescent about the liferent, refused to do so. She could not recall the day of the
week when the document was witnessed. Four copies of it were made. She did not save
documents on her laptop. She had disposed of it. It was old and the keyboard was jumpy.
The pen and pencil were expensive being Mont Blanc - and in a presentation case, not a
traditional pencil case. There was no way she would have kept them. It was like they
signed his death warrant. She threw them out.
[49]
At some stage she was told about a problem with her planning application for
construction of a lodge in the garden. She denied that she was concerned that Carole would
16
object to the application. While Carole and David had expressed their views, it was not their
father's garden it was ours, and she had created and maintained the rose garden. The
disposition was dated 21 January 2022, and the land ownership certificate in the application
was dated five days later. She did not see the certificate at the time. The architect took
control. He would have assumed that she owned the property.
[50]
When she told Mr Johnston about the codicil she mentioned that she was wanting to
make a new will. She was concerned that if Stuart and his wife separated, Stuart might lose
half of his house and would have to stay with her. She would need to have control of the
house. She would need to sell it to help him acquire a property. She wanted to pass the
lodge or its value to Stuart. When it was suggested that her husband would not have
wanted this, the reply was that he treated Stuart as his own son and would not object to him
having an income. He felt he should have left Stuart some money. The reason for the codicil
was that it could cause problems if the survivor of them had no control over the main asset.
[51]
Regarding her desire to change paragraph three of the codicil, including as to the
destination of the property on her death, she might leave the lodge to Stuart but no decision
had been made. Being tetraplegic Stuart was unable to pursue his profession. There were
problems with his care package. He had no pension. David and Carole were both in a
better position. Her husband had recognised all this, so the decision was that after he died
she should have control of what happened to their home. The concern was that if Stuart and
his wife separated he would have to be with his mother. She would have to sell the house to
buy one for Stuart. Her husband said that in that event David and Carole would get nothing
from it. In effect he took the view that it would be up to her to decide what would happen
to the property on his death.
17
[52]
Counsel pointed to the second page of the transcript of the telephone call to
Grant Johnston in October 2021 and the reference to the property being split. She did not
mention the above decision because that was to be the position unless circumstances
changed, and they hadn't at that point. She had to look at giving Stuart an income, perhaps
from the property. His condition deteriorated in the October and his partner had moved to
part-time work. Alexander Niven said that he would leave the decision to her regarding the
house.
[53]
In the transcript of the call she is recorded as saying that David and Carole had done
well from their father. She did think that, but Stuart had also done well by him. It was put
to Irene Niven that she would not want to see any part of the lodge going to David and
Carole. Her response was that any monies spent on the lodge would be her investments,
and naturally she would not give them to David and Carole. Under reference to a passage
in the transcript she agreed that the matter became urgent because she wanted to get on
with the planning application.
[54]
In Irene Niven's affidavit
it was said that she and her husband "googled" to check
out the liferent condition. They did not tell Mr Johnston Alexander refused to do so. It
was pointed out that in an email
she had said that they tried to contact him but failed. She
was not sure which version was correct.
[55]
As to the codicil it was put to the witness that she tried to trace her husband's
signature in pencil, was not satisfied with it, rubbed it out and did it again, then signed in
pen. This was denied. She was a published author and had she forged the signature she
would have made a better job of it. It was not a good day for him when he signed the
codicil. She first employed Carly March in 2016. She was aware of her conviction, which
she thought occurred in 2017.
18
[56]
I discuss Irene Niven's evidence later in this opinion.
The expert handwriting evidence
[57]
Both parties lodged expert handwriting reports addressing the question as to
whether Mr Niven's signature on the codicil had been forged. Evelyn Anne Gillies had been
instructed by solicitors for David Niven and Carole Melaisi. She produced a report dated
24 March 2022 and an addendum to it dated 25 October 2022. Irene Niven's solicitors
instructed Kathryn Thorndycraft-Pope who provided a report dated 14 July 2022 and an
addendum dated 23 April 2023. Both were led in evidence and cross-examined.
Evelyn Gillies' report of March 2022
[58]
Evelyn Gillies' report states that on viewing a copy of the codicil the illegible
signature in question appeared as though there were two signatures, one written on top of
the other. Close examination of the original document revealed at least two sets of pencil
lines below the visible pen line. One set of lines had been "erased". The signature was
written with a degree of tremor and multiple pen lifts. There were areas where the pencil
line had not been followed. The presence of pencil lines under an ink signature is indicative
of simulation.
[59]
For her first report Ms Gillies was provided with some known signatures of
Mr Niven and a letter written by him in 2013. This material was not enough to give an idea
of the range of his signature. She was also provided with samples of Irene Niven's
handwriting which included a signed cheque dated 21 April 2021. All of it displayed a high
degree of tremor, multiple pen lifts and overwriting.
19
[60]
The lack of sufficient examples of Mr Niven's signature prevented a full comparison.
However it was unlikely that someone would sign their name in pencil then write over it in
pen. Some of the literature on simulation/forgery is quoted in the report. In such cases an
emphasis on making the forgery look genuine is to the detriment of the line quality.
Simulations are most often associated with poor line quality, lack of fluency, tremor,
retouching and overwriting. They lack the fine detail of a genuine signature, and there may
be associated indentations or guidelines. Ms Gillies' opinion was that the signature in
question is a poorly executed simulation.
Kathryn Thorndycraft-Popes' report of July 2022
[61]
In her report Ms Thorndycraft-Pope notes that she took into account information she
was given as to Mr Niven's infirmities at the time, including blurred vision and muscle and
motor skill loss due to a previous stroke. She examined known signatures of Mr Niven and
the questioned signature. There are pencil lines which appear to have been written before a
very badly formed black ballpoint pen ink signature. The signature, including the shaky
lines, is described.
[62]
Pencil lines usually suggest simulation, but Ms Thorndycraft-Pope would not expect
a forger to make such a bad job of copying the signature. Also more care would be taken to
see that the pencil lines were erased. Mr Niven was very old. She had been told of medical
problems affecting his sight and motor skills which could have affected his handwriting.
Also she had been told that Mr Niven erroneously picked up a propelling pencil to append
his name. When told of the error he used a biro, apparently trying to erase the initial pencil
line. Having no handwriting samples from around the time of his death when Mr Niven's
20
health had deteriorated, she felt that the evidence was inconclusive. (She had been provided
with copies of four signed cheques dated in November and December 2019.)
[63]
In the report Ms Thorndycraft-Pope's conclusion is expressed as follows:
"In my experience I feel there is Insufficient (sic) evidence to rule out OR confirm
whether this is the genuine signature of Mr Alexander Faulds Niven having also
considered the possibility of his signature having been simulated by an unknown
author."
The addendum to Evelyn Gillies' report provided in October 2022
[64]
Ms Gillies was provided with Ms Thorndycraft-Pope's report. In response she
comments that the ability to copy another's signature successfully varies from person to
person. The circumstances as advised to Ms Thorndycraft-Pope did not explain the second
pencil line. While she may not have had access to the signatures on the cheques completed
immediately before and after the date of the codicil, Ms Thorndycraft-Pope did have
signatures completed less than two months before, and they did not show any decline in line
quality.
[65]
For the purposes of the addendum Ms Gillies was given a large amount of additional
documentation, including the 2016 will, which has several signatures, and the cheques
drawn on Mr Niven's bank account dated from 2015 to 25 March 2020. There are similarities
in the layout of the customer entries in all the cheques bar one, namely that dated
14 February 2020. Only it shows signs of tremor/poor line quality. (During her evidence
Irene Niven stated that she completed that cheque.)
[66]
Given the large number of comparable signatures provided to her, the comparison
with the questioned signature was restricted to the 11 cheques dated from December 2019 to
March 2020 and the original signatures on the will. All again bar one are of sufficient
21
quality to allow the judgement that they are genuine signatures of Mr Niven. There is no
decline in the quality of those written before and after the date of the codicil. Comparison of
them with that on the codicil indicated that it is not genuine. There are significant
differences, all as illustrated in the addendum. The questioned signature does not fall within
the range of signatures dated from December 2019 onwards.
[67]
Ms Gillies re-examined examples previously provided of Irene Niven's writing. It is
very poor with a high degree of tremor and some evidence of breaks within the writing line.
Comparison of her writing with the questioned signature revealed a number similarities
which are specified and illustrated in the addendum. Ms Gillies quotes a passage in Forensic
Handwriting Identification, Fundamental Concepts and Principles, Ron N Morris 2000 at
page 141:
"In a simulation, the author is generally not identifiable, partly because he is
attempting to draw the handwriting features of another writer while concealing his
own. However, there have been instances when a writer (drawer) did not adhere to
the model before him and a sufficient amount of his own handwriting features and
habits were incorporated into the simulated writing so that their significance for or
against identification could be assessed."
[68]
Ms Gillies expresses disagreement with Ms Thorndycraft-Pope's view that the
evidence is inconclusive. Her opinion is unchanged, namely that it is unlikely that the
questioned signature is genuine. It is probable that Irene Niven was the author.
Ms Thorndycraft-Pope's addendum of April 2023
[69]
Ms Thorndycraft-Pope was provided with the cheques previously given to
Ms Gillies. She had been told that none of the cheques dated after August 2019 were signed
by the deceased after that month. This was because of his health and the deterioration in his
motor skills. Almost all the pre-signed cheques were filled in by him, the exception being the
22
cheque dated 14 February 2020 which had been completed by his wife. She was provided
with further documents bearing signatures and writings of Irene Niven. She was asked to
compare these with the questioned signature. In the addendum once again reference is
made to the information provided as to Mr Niven's health.
[70]
The addendum then describes (1) the original of the questioned signature after a
microscopic examination, (2) Irene Niven's handwriting, and (3) the signatures on the
cheques, concentrating on the later ones. The cheque signatures were of common
authorship. As to a comparison with the known writing of Irene Niven, the questioned
signature was of such poor quality that there was very little the author could compare.
There was insufficient evidence to come to any positive conclusion.
[71]
Ms Thorndycraft-Pope acknowledges that usually one would expect pencil lines
beneath a signature to have been put there as guidelines in an attempt at simulation.
However if this was the case she would not expect such a bad job of the copying of the
signature. Also there would have been more done to erase the pencil lines. The late
Mr Niven's medical problems could have affected his handwriting. She had been told that
he initially used a propelling pencil in error.
"Due to the circumstances and having no handwriting samples around the time of
his death when his health deteriorated. I feel (sic) that the evidence is Inconclusive
and it would be very difficult to prove this case one way or the other."
(paragraph 4.11)
The examination of the expert witnesses at the proof
Ms Gillies
[72]
Ms Gillies spoke to her report and the addendum. She cast doubt on
Ms Thorndycraft-Pope's qualifications. She is not a member of the Chartered Society of
Forensic Sciences. The National Association of Document Examiners, an American
23
organisation, is not well regarded. She ventured that Ms Thorndycraft-Pope is probably the
only UK member.
[73]
With regard to the views expressed by Ms Thorndycraft-Pope, Ms Gillies made the
following remarks. If someone with poor writing skills attempts to replicate another
person's signature, it will tend to be of poor quality. As to the still visible pencil lines, they
might think nobody will notice, or they may be concerned that erasure will damage the
paper or smudge the ink. Ms Thorndycraft-Pope may not have had genuine signatures
made immediately before and after 22 January 2020, but she did have one dated a month
before which had no sign of tremor.
[74]
Under cross examination Ms Gillies accepted that one did not have to be an expert to
draw inferences from pencil lines under a signature. She had not been told that the cheques
dated and completed after August 2019 had in fact been signed in the August. If that was
the case she did not think that it would affect her opinion. She would still use them even if
signed in August 2019. The other writing on the cheques by Mr Niven showed no difference
in quality. There were so many mistakes in the codicil signature. Even in the case of
dementia, the ability to write one's signature stays with you. Deep impacts on the back of
the codicil indicated that a lot of pressure had been applied. It did not surprise her that the
cheque dated 14 February 2020 had been written by Irene Niven. The variations in the
signatures she relied on for the comparison exercise all fell within the range of genuine
signatures.
[75]
With regard to her first report, while the number of signatures supplied was at the
lower level of what would be desirable, there was enough to see that the codicil signature
was completely different, and pencil lines are a feature of forgeries. The forger might have
thought that they would not be seen. When she had only a copy of the codicil, she did not
24
see the pencil lines. There was an attempt to erase one of the lines. She could not know
what was in the mind of the forger or their capacity to think these things through. She had
been told that Irene Niven was a heavy drinker, and that might be an explanation for the
poor job. She had not been told by Mr Niven's children that they thought Irene Niven had
forged her husband's signature. The body of Ms Thorndycraft-Pope's report was described
as "quite sparse".
[76]
In re-examination Ms Gillies spoke to the pressure applied by the author of the
signature which is apparent on the reverse of the principal document. This suggested that
someone was trying to follow the pencil lines.
Ms Thorndycraft-Pope
[77]
Having spoken to her qualifications, Ms Thorndycraft-Pope commented on the very
poor quality of the signature. There might have been a health problem. She could not say
whether it was or was not the writing of Mr Niven. Her overall position was categorised as
"inconclusive". However she would expect a forger to make a better job of it. She didn't
receive many signatures of such poor quality which she described as 1 out of 10. It is so
hesitant and tremulous that it is difficult to make anything of it. Usually pencil lines would
be erased she had not seen many where they were not. She had seen the indentations
underneath the signature. With regard to her addendum at paragraphs 4.11/12, by then she
had been told that cheques had been pre-signed.
[78]
In cross-examination the witness stated that, if healthy at the time, she would not
have expected Mr Niven to write like that. She had taken into account the information
supplied to her that he had an intermittent tremor. If he was able to drive she would not
have anticipated such a poor signature. If the reason given for the use of a pencil was true,
25
she would have expected to see only one pencil line. If the cheque pre-signing was not true,
her opinion might change.
[79]
Later I discuss the expert evidence. The parties' submissions on the evidence were
presented in writing.
The written submissions on the evidence
A summary of the submissions for David Niven and Carole Melaisi
[80]
The evidence of Evelyn Gillies should be accepted. She gave clear reasons for her
conclusions. The questioned signature has specific similarities with Irene Niven's writing
style. It is wholly different from the deceased's signature. The pencil lines and the
indentations in the original document point to simulation.
[81]
Ms Thorndycraft-Pope's view was based on assumptions as to the deceased's state of
health which were not borne out in the evidence. It indicates that in January 2020 he was
reasonably fit and healthy. Ms Thorndycraft-Pope relied on the explanation for the pencil
lines provided by Irene Niven and Carly March, but it does not fit with the presence of two
pencil signatures, one partially erased, which could be identified in a magnified image. She
was told that there were no post August 2019 signatures of the deceased, the later cheques
having been pre-signed. It was said that he did this because of an intermittent tremor, but
with one exception the later cheques were completed by him without any sign of tremor.
There was no independent evidence of any such tremor. The evidence of pre-signing should
be rejected. In any event it does not undermine the other evidence relied on by Ms Gillies.
In short none of the factors mentioned by Ms Thorndycraft-Pope rebut her starting point,
namely that pencil lines beneath a signature are usually indicative of simulation.
26
[82]
The evidence of Irene Niven and Carly March as to the signing of the codicil should
be rejected. Neither of them was a credible and reliable witness. Carly March has been
dishonest in the past. She gave evidence in the manner of someone determined to stick to
the party line. Her account was contradicted by the second pencil line. It was not credible
that the signing would have taken 10 to 15 minutes. She said it happened on a Monday,
however 22 January 2020, the date on the codicil, was a Wednesday.
[83]
As to Irene Niven, the long delay in production of the codicil; the coincidence with
the desire to build the lodge and make provision for her son; and the implausibility of the
explanation of waiting until after his wedding to avoid family absences, all point to the
falsehood of her claim that the codicil is genuine. Contrary to her evidence, in the telephone
call she told Mr Johnston that she had forgotten about it and simply came across the
document when going through her files.
[84]
Consistently with the questioned signature and her handwriting, when giving
evidence Irene Niven displayed a persistent tremor. In the October 2021 telephone
conversation with Mr Johnston she claimed that the impetus for the codicil was her
husband's diagnosis with lung cancer but that was not made till 12 March 2020. She
promised him that she would not alter David and Carole's share of the house on her death,
but that is exactly what she wanted to achieve.
[85]
Irene Niven gave differing accounts as to how and why the codicil came about
without input from their lawyer. She was inconsistent as to when she disposed of her
previous laptop. It is not credible that a published author would not have saved a copy of
the codicil on her laptop. She contradicted the assertion in her pleadings that her husband
had a pencil case. The explanation for not keeping the pen and pencil set said to have been
used for the codicil signing did not ring true.
27
[86]
Earlier in the proceedings interim interdict was granted preventing Irene Niven from
alienating, burdening or otherwise dealing with Alexander Niven's share in the house.
Perpetual interdict was sought.
A summary of the written submissions for Irene Niven (lodged after sight of the above
submissions)
[87]
The burden of proof rests on those challenging the codicil. Given the seriousness of
the allegation that Irene Niven forged her husband's signature and uttered a false document,
and that Carly March has colluded with her, strong evidence of good quality would be
required for its proof B v Scottish Ministers 2010 SC 472.
[88]
The direct testimony of Irene Niven and Carly March is the best evidence as to the
circumstances of the signing of the codicil. It is supported by David Niven's evidence that
during the conversation at the restaurant in Troon no mention was made of the liferent,
suggesting that his father was unaware of it or did not understand it. In addition
Carole Melaisi said that during her visit on 19 April 2020 her father said that the house
would be split with 50% to Stuart and the rest divided between her and her brother. The
codicil is the only testamentary writing spoken to in evidence which sets this out. This
indicates that her father knew of it and consented to it.
[89]
Both Irene Niven and Carly March were credible and reliable witnesses. Their
evidence coincided on important points but were not so matched as to appear rehearsed or
tailored. There is no evidence that Carly March will benefit, and after her conviction why
would she take the risk of perjuring herself? Clearly Mr Niven had trust in her. It was
natural and convenient that she be asked to witness the signatures.
28
[90]
Mr Niven was not completely disinheriting his children they would share
moveable estate of about £140,000. He may have thought, albeit wrongly, that overall the
codicil was a mutual will which in a manner similar to the liferent arrangement guaranteed
that eventually a half share of the house would pass to David and Carole. As to the errors in
the terms of the codicil, it remains a valid instrument, and it can be noted that the 2016 will
refers to "David Niven" with no mention of his first name.
[91]
The evidence indicates that Mr Niven wanted to change his will because once he
learned of it he was unhappy about the liferent. There was no evidence that Mr Johnston
had ever explained it to him. As to the delay in its production, had it been a fabrication it
would have been as easy to produce it in May 2020, something which would have reduced
the amount of attention given to it.
[92]
The explanation of wanting to avoid a family split at the time of her son's wedding is
plausible. Plainly long before this David and Carole were hostile towards her. Neither
attended the January 2022 celebration thereby demonstrating that Irene Niven's concerns
were justified. Calling Stuart Niven as a second defender could only be explained by
animosity towards him. Despite inheriting all of the residue of their father's moveable estate
his children have acted as disappointed beneficiaries, with feelings of suspicion, resentment
and antipathy towards a stepmother that would not be out of place in a Victorian novel. She
has been subjected to a highly unpleasant experience. As well as being a criminal, in open
court in front of family they have accused her of heavy drinking and of manipulative
controlling behaviour. Without robust and solid evidence they have made offensive and
defamatory allegations of the utmost gravity about a septuagenarian who has only recently
lost her husband.
29
[93]
A fraudster of even average intelligence would not have perpetrated a scheme in the
incompetent manner claimed in this case. A swindler would have dated the document
shortly before Mr Niven died thus providing an explanation for not making the journey to
consult their lawyer. There was no need to involve Carly March; Irene Niven herself could
have witnessed her husband's signature. A forger would not have made such a clumsy job
of copying the signature. It is not plausible that such blatant pencil lines would not be
erased.
[94]
The medical evidence points to the deceased being frail and in declining health from
at least the summer of 2019. It is not surprising that a loss of fine motor skills was not
recorded in his medical notes given that priority would be given to his other problems.
Dr Buchan's "otherwise fit and healthy" comment was designed to facilitate treatment for
his patient. Alexander Niven was not a man to make a fuss or cause distress to his children.
[95]
Ms Thorndycraft-Pope's expert evidence should be preferred. She disclosed the
evidence she was given, for example the affidavits of Irene Niven and Carly March. We do
not know what Ms Gillies was told, or how she derived the proposition that Irene Niven is a
heavy drinker. Some of the material relied on by Ms Gillies was of inferior quality, in
particular the multigenerational photocopies of cheques. She made assumptions which have
not been proven, such as that the pencil marks were guidelines and that in January 2020
Mr Niven had no problem with writing.
[96]
Ms Gillies' willingness to find forgery, even using the insufficient amount of material
provided for her initial report, indicates an eagerness bordering on bias. She should have
postponed judgement until provided with further information such as the cheques dated
within three months of the questioned signature. In respect of them plainly she had not
read Ms Thorndycraft-Pope's report which revealed that they had been signed in August
30
2019. By contrast Ms Thorndycraft-Pope approached such a serious allegation with due
caution and circumspection.
[97]
Ms Gillies' reasoning as to why a forger might not have erased the pencil marks is
easily refuted. For example they are so obvious they would be bound to be noticed and then
erased without smudging or damage to the paper.
[98]
In short, the evidence does not bear the weight of an allegation of serious criminal
conduct.
Supplementary submissions lodged in response to those for Irene Niven
[99]
The burden of proof rests on Irene Niven in that she claims to have seen the deceased
sign the codicil and asserts that it is valid. Reference is made to recent decisions south of the
and his sister, it is only in respect of the claim that the signature is not that of their father.
They do not have to prove who was responsible. The ordinary civil standard of proof
applies.
[100]
The evidence of Irene Niven and Carly March attracts no special status. Irene Niven
is the primary beneficiary of the codicil and her evidence should be approached with
caution. Carly March was unable to speak to what it was that she saw Mr Niven signing.
[101]
The conversations between the deceased and his children relied on by Irene Niven
are consistent with his 2016 will. The codicil changed their position and it is significant that
he made no mention of this to them. There is no basis for the speculation about a mutual
will. In the recorded telephone conversation Irene Niven says that her husband was always
concerned about the liferent and never liked it. If that was true he would have raised it with
31
Mr Johnston. It was entirely appropriate that Stuart Niven be convened for any interest he
might have.
Irene Niven's final written submissions
[102]
The onus lies on those who challenge the validity of an ex facie probative document.
Carly March did not require to see the substance of the document she was witnessing the
signatures. If her evidence is credible and reliable, it can be accepted that the document was
the codicil. Much of this document is a recapitulation of earlier submissions and need not be
summarised here.
Decision
[103]
I accept the submission for Irene Niven as to the burden of proof resting on
David Niven and Carole Melaisi. It is they who are pursuing the action and are claiming
that the relevant part of the codicil should be set aside because their stepmother forged their
father's signature. I also accept the submission as to the implications of the serious nature of
the allegation. While the civil standard of proof on a balance of probabilities applies, cogent
and sufficiently powerful evidence will be required to satisfy the court that the forgery case
has been established, see B v Scottish Ministers 2010 SC 472. I have approached the
assessment of the evidence with the guidance in that decision firmly in mind, particularly
that at paragraph 42 which stresses the need for evidence of quality and weight carefully
scrutinised by the court if a case of the present kind is to be proved.
[104]
The evidence of Carly March supports that of Irene Niven on the crucial issue. For
obvious reasons none of the other witnesses were able to assert from their direct personal
knowledge that the late Mr Niven did not sign the codicil. David Niven and Carole Melaisi
32
required to rely on expert evidence and other indirect factors or circumstances which it is
said undermine the credibility and reliability of the alleged eye witnesses. All of the
evidence has to be considered and weighed in order to determine whether they have
established their case.
[105]
Beginning with the expert evidence, I prefer that of Evelyn Gillies (summarised
above). Taken as a whole it is a careful and detailed examination of the relevant material.
Her text, particularly in her addendum, is backed up by illustrations from the signatures
and other writings placed before her. Her reasoning in support of her conclusion that it is
probable that Irene Niven is the author of the questioned signature is clear, cogent and
convincing.
[106]
I am not so impressed by Ms Thorndycraft-Pope's evidence. Rather than a purely
forensic examination of the signatures and other documentation put before her, much of it is
based on an assumption that various matters told to her, for example as to the deceased's
state of health and the pre-signing of cheques, were true and accurate. Ms Thorndycraft-
Pope did not address the observation that the questioned signature displays features of
Irene Niven's writing. She assumed that if Irene Niven was responsible for the signature she
would have made a better job of it. However I have no difficulty with Ms Gillies' remark
that the ability to copy another's signature successfully will vary from person to person.
There is bound to be a spectrum in such matters, and it is worth remembering that a
signature which looks to be an obvious forgery to an expert under microscopic examination
may seem at least satisfactory to the person responsible. For example, so far as this codicil is
concerned, and contrary to the submission for Irene Niven, at least to me the pencil lines at
the questioned signature are not blatant if one is simply looking at the original document.
33
[107]
Both expert witnesses acknowledged that pencil lines beneath a signature will
usually indicate that guidelines were used in an attempt at simulation. In this regard
Ms Thorndycraft-Pope was content to refer to the explanation tendered to her, but without
making any comment on the fact that it did not account for the second pencil line. I accept
the evidence that the indentations in the paper at the questioned signature suggest that it is
not genuine. As to the August 2019 cheque pre-signing evidence, even if it were accepted as
true, there was more than sufficient unchallenged examples of Mr Niven's writing shortly
before and after 22 January 2020 to demonstrate that the questioned signature was the only
item showing signs of tremor, overwriting and pen uplifts, all of which are features of
Irene Niven's handwriting.
[108]
In short, though not in itself determinative, I consider that Ms Gillies' evidence, all of
which I accept, strongly supports the claim that Irene Niven forged her husband's signature
on the codicil.
[109]
More generally there are surrounding circumstances which militate against the
evidence of both Carly March and Irene Niven. All the evidence points to the late Mr Niven
being a careful and meticulous man. He instructed his longstanding solicitor to draft his
will. On the salient points, including the liferent, it was an unremarkable document which
would have been easily understood by anyone of ordinary intelligence. If there was
anything which Mr Niven did not grasp or was unhappy about, there would have been no
difficulty in consulting Mr Johnston, and likewise in respect of any desire to change his will.
Different explanations have been given for the failure to do that, none of which are
convincing.
[110]
Both David Niven and Carole Melaisi were aware of the general position regarding
the house on their father's demise. They understood that their stepmother, who owned half
34
of it, would not be evicted, and that in due course their father's share would come to them.
If the evidence that Mr Niven signed the codicil is to be accepted, it would follow that he
decided to alter his will in an obviously significant way and thereafter chose not to tell either
his children or his solicitor. Given the evidence as to his character, his relationship with his
children, and his longstanding reliance on Mr Johnston, both propositions are unlikely.
Furthermore while various accounts have been proffered by Irene Niven by way of
explanation for the change in his testamentary provision regarding the house, I find none of
them likely or compelling.
[111]
If the codicil is genuine, why did Irene Niven wait until October 2021 to reveal its
existence? A number of implausible explanations have been tendered, for example that she
was waiting until after her son's marriage, or that she had forgotten about it and just came
across it when going through her files. She has claimed that she thought that the codicil
made no difference, or would only come into effect if the house had to be sold, neither of
which is credible. It can be noted that in January 2022, as by then sole executrix, she took
advantage of its terms and conveyed the deceased's half share to herself as an individual.
This paved the way for the planning application.
[112]
It is plain from her evidence that by October 2021 Irene Niven wanted to build an
accessible lodge in the garden and that she was concerned about the financial and personal
circumstances of her disabled son. In the telephone call with Mr Johnston she told him that
she was about to tear up the codicil (again an unlikely occurrence if it was a genuine
representation of her and her late husband's wishes) when she thought about David and
Carole benefitting from her expenditure on the lodge. She was seeking reassurance that the
document would allow her to give its value to Stuart. And she was wanting to alter the
third paragraph of the codicil, namely the part where she bequeathed the house to Stuart,
35
David and Carole. That conversation with Mr Johnston and her evidence in court reveals a
motive emerging in 2021 for Irene Niven to take steps to defeat her stepchildren's ultimate
interest in the house to the benefit of her and her son. During her cross-examination it
became clear that essentially she had decided that she wanted to have sole control of the
house, and as matters stand that desire has been fulfilled.
[113]
There are other factors which adversely affect the credibility and reliability of the eye
witness evidence. The explanation proffered by both Irene Niven and Carly March that Mr
Niven signed once in pencil by mistake is not consistent with the microscopic examination
which revealed a second pencil line. The physical evidence matches someone being
dissatisfied with a pencilled guideline, attempting to erase it, then starting again. As in the
questioned signature, Irene Niven's handwriting is shaky, as one would expect from
someone with tremors. I do not accept that the shaking in court was wholly explained by
stress, nor her evidence that she does not have tremors. Moreover the codicil has errors
which it is unlikely that Alexander Niven would have tolerated.
[114]
Particularly when regard is had to the medical records as spoken to by Dr Lazaro, I
am of the view that throughout her evidence Irene Niven exaggerated the consequences of
her husband's health problems for his writing skills. He completed a number of cheques
shortly before and after 22 January 2020 with no sign of tremor or loss of line quality. This
gives the lie to the evidence that in August 2019 he decided that it was necessary to pre-sign
all the cheques which were completed thereafter till his death. That suggestion came late in
the day, it can be inferred in an attempt to undermine the force of part of Ms Gillies'
addendum to her report. It is mentioned for the first time in Ms Thorndycraft-Pope's
addendum dated shortly before the start of the proof. For her first report she was provided
36
with post- August 2019 cheques which were not caveated with the pre-signing qualification.
If the pre-signing was true she would have been informed about it when given this material.
[115]
I agree with the submission that the explanation regarding the disposal of the Mont
Blanc pen and pencil set does not ring true. At times during her evidence I formed the view
that Irene Niven was endeavouring to hold to a prepared line, but when faced with difficult
questions gave inconsistent and implausible responses which she seemed to be making up
as she went along.
[116]
I do not accept the submission that the defence case was supported by certain
evidence from David Niven and Carole Melaisi. That his father did not mention the liferent
to David at a lunch in Troon some years ago is of no real significance, especially since it was
understood that his wife would be staying in the house if he died first. As to the
conversation with Carole during her last visit, there is no inconsistency between it and the
position as understood by her and her brother. The submission might have had at least
some force if it had been demonstrated that the codicil innovated on Irene Niven's
testamentary wishes as to her share of the house. The entirely speculative submission about
a mutual will was not spoken to by Irene Niven, and indeed has been contradicted by her
actions.
[117]
As to other matters advanced on behalf of Irene Niven, it is true that
Alexander Niven's children would still inherit his other possessions, but this is a factor of no
real relevance. The 2016 will does indeed refer to "David Niven", but that is how he is
known and it was prepared by Mr Johnston. It hardly deflects from the error regarding
Alexander Niven's son's first and middle names and the other mistakes in the codicil. No
adverse inference can be drawn from the understandable decision that Stuart Niven be
37
called for any interest he might have. In the event he did not enter the process and no order
is sought against him.
[118]
I do not accept the submission that the eye witness evidence should be given a
special status. It is necessary to weigh up all of the evidence, both direct and indirect, which
bears on the crucial issues. Plainly that includes the evidence of Carly March. She said that
she was asked to witness the signatures of Mr and Mrs Niven on a document in their
kitchen. Though she did not see what the document was, I consider that if her evidence is
accepted the forgery claim must fail.
[119]
In the past she has been a carer for Stuart Niven and was a Facebook friend. She has
been employed by Irene Niven for some years. In that sense she is not wholly independent,
though that alone would not be a problem. Her account as to what happened regarding the
pencil is not borne out by the existence of a second pencil line. Her evidence was
inconsistent as to how Mr Niven was on the day, initially saying that he was fine and his
normal jolly self, then that he was frail, quiet and nervous. She has been prepared to act
dishonestly in the past. As with that of Irene Niven, Carly March's evidence has to be
assessed in the light of the facts and circumstances outlined above.
[120]
I can now sum up my conclusions as to where the evidence leads. The burden of
proof on those alleging the forgery is a heavy one; nonetheless after giving the matter careful
consideration I am of the view that it has been discharged. For all the reasons outlined
above neither Irene Niven's nor Carly March's evidence is accepted as being credible and
reliable. It is true that that no clear motive for Carly March falsely stating that she saw
Mr Niven sign the document has been established, but I am persuaded that, for whatever
reason, that is what she has done. If the codicil was a true reflection of the late Mr Niven's
testamentary wishes, it would have been exhibited long before October 2021. By then
38
Irene Niven had decided that she wanted sole control of the house. She prepared the codicil
which contains errors that her husband would not have tolerated. She made a pencil
guideline of his signature. Being dissatisfied with it she rubbed it out, albeit leaving traces,
and repeated the exercise. She then simulated an ink signature, though she was unable to
withhold features characteristic of her own handwriting. She signed her own name and
then persuaded Carly March to witness both signatures.
Disposal
[121]
I shall grant decree of reduction of (a) the relevant part of the codicil and (b) the
disposition of Alexander Niven's share in the former matrimonial home to Irene Niven, all
as sought in the first and second conclusions of the summons; and also interdict against
Irene Niven or anyone on her behalf from transferring or dealing in any way with the late
Alexander Niven's half share in the property as per the third conclusion. I shall accede to
both sides' request to reserve all questions of expenses meantime.
