Scottish Sheriff Court Decisions

Act:  McColl, Advocate instructed by Messrs Caesar & Howie, solicitors

Objector: (1) Mrs Elizabeth Smith

Objector: (2) Miss Jan Graham

EDINBURGH, 21 April 2015

The Sheriff Principal, having resumed consideration of the appeal, allows the appeal;  recalls the interlocutors of 21 August and 1 October 2014;  Finds that the pursuer and appellant is entitled to be confirmed as executor nominate of Melanie Georgina Gibson who died on 7 October 2012 and who at the time of her death had her ordinary and principal domicile within this Sheriffdom thereafter grants warrant to the Commissary Clerk to issue confirmation in favour of the pursuer and appellant and meantime reserves all questions of expenses in connection with the petition and the appeal.

(signed) Mhairi M Stephen

NOTE:

1. Melanie Gibson died at home in Greenrigg on 7 October 2012.She was divorced and had no sons or daughters.The petitioner and appellant is her sister Anne Hamilton. The deceased was survived not only by the petitioner but by her sisters Elizabeth (Beth) Smith, Marion Hamilton and Jan Graham.She is also survived by a brother.

    

2. In her application to the court the petitioner seeks special warrant to issue confirmation as executor nominate of the deceased qua residuary legatee of the deceased.The petitioner relies on a holograph will or writing at the hand of the deceased dated 20 January 2012 in which she leaves her estate to "Anne" but fails to appoint an executor or executors.The petition avers that the holograph will is not probative but bears to be in the handwriting of the deceased and subscribed by her.The petition is supported by an affidavit of Marion Hamilton, a sister of Melanie Gibson, who confirms that the signature is that of the deceased.

    

3. The sheriff had doubts as to the testamentary effect of the writing or holograph will upon which the petition relied.The sheriff ordered intimation to the other siblings who would share in the deceased's estate on intestacy.Two sisters of the deceased (and also of the petitioner) objected to the grant of confirmation in favour of the petitioner.The sheriff then fixed a proof in order that evidence might be admitted to assist the court determine the nature of the writing and whether it had testamentary effect.

    

4. Following proof in May and August 2014 the sheriff made findings to the effect that a notebook containing certain entries was found in the home of the deceased shortly after her death.One of the entries in the notebook in the handwriting of the deceased and subscribed by her is the entry of 20 January 2012 said to be the "holograph will".The person mentioned in that entry as "Anne" is the petitioner.The deceased had mentioned her wish that the petitioner inherit her estate.The deceased had mentioned other beneficiaries also.The sheriff was satisfied that the entries in the notebook had been made by the deceased and signed by her and that the deceased had the requisite testamentary capacity.There was evidence that the deceased was a "functioning alcoholic" however there was no evidence before the sheriff which would permit him to proceed other than on the basis that the presumption that a testator has capacity had not been displaced.However, the sheriff concluded in a finding in fact and in law that the diary entry of 20 January 2012, which was said to be the holograph will, could not to be regarded as a writing by which the deceased intended to bequeath her estate.Accordingly, the document lacked the necessary testamentary intention and could not be seen as a will or testamentary writing.The sheriff therefore refused the application for warrant to issue confirmation in favour of the petitioner on the deceased's estate.The petitioner appeals that decision.

    

   THE APPEAL

5. The starting point is the entry in the deceased's notebook which is said to be the holograph will.It is set out at paragraph [5] of the sheriff's note.However, for convenience I set it out below.

   "20/01/12

    

   -  Nearly 51?

    

   -  Life is shit at this time!!!

    

   *Please remember.  If Anne is still alive, I want her to have my wealthy remains – the house, pension, savings and everything else…

    

   I hope my family accept this…

    

   IT IS MY WISH.

    

   Melanie Gibson

    

   20/01/12"

    

6. Mr McColl for the appellant challenged the sheriff's finding in fact and in law. It is in the following terms:-

   "That the said entry of 20 January 2012 is not to be seen as a writing by which the deceased intended to bequeath her estate in whole or in part."

               An analysis of the findings in fact; the writing and the law points clearly to error on the part of the sheriff in so concluding.  Accordingly, his interlocutor on the merits and expenses falls to be recalled, the result being that the sheriff clerk should be directed to grant the special warrant in favour of the appellant.  Expenses should be reserved.

    

7. Counsel for the appellant was critical of the sheriff's failure to analyse the diary entry of 20 January 2012.The sheriff had failed to consider this adequately if at all.He failed to apply the law to the facts.He failed to consider the writing in light of the guidance given in the decided cases to which he was referred.He accordingly erred.The sheriff had taken account of irrelevant matters, in particular the other entries in the diary.The sheriff had misapplied the law to the writing and had been inconsistent in his approach to the deceased's alcohol problem.The conclusion to his reasoning at paragraph [38] highlights precisely his error in the following passage:-

   "If the only consideration was the wording of the entry itself, the pursuer's arguments may well have succeeded, but having weighed up all the circumstances, I find that the action does not succeed, and that the crave, which depends on the document being seen as a will, must therefore be refused."

    

8. Before I consider the grounds of appeal and the specific challenges to the sheriff's judgment the legal framework must be considered.The sheriff was referred to three authorities Colvin v Hutchison (1885) 12 Rettie 947;Draper v Thomason & Others 1954 SC 123 and Rhodes v Peterson & Another 1972 SLT 98.The same authorities were considered on appeal.

    

9. The sheriff correctly acknowledges that he requires to consider whether the diary entry or writing of 20 January 2012 can be regarded as having testamentary effect in the sense of being a valid will.The sheriff required to be satisfied as to three questions.

    

10. Firstly, did the deceased as the grantor of the document have the capacity to execute the document at that time (20 January 2012)?There is a general presumption that adults have the requisite capacity unless there is evidence to displace that.The sheriff clearly accepts that the deceased had testamentary capacity.In para [16] he comments on the deceased having been described by her sister, Elizabeth Smith, as a "functioning alcoholic".Accepting that, the sheriff observes that there was no evidence that the deceased was so inebriated that she was not of sound mind when she made the entry of 20 January 2012.Accordingly, the presumption that she had the requisite capacity has not been displaced.

     

11. Secondly, was the document in the hand writing of the deceased and subscribed by her?The sheriff was clearly satisfied as to that requirement.At para [17] he states:-

    "[17]  The second part of the test is also easily dealt with.  There is no doubt that the deceased made the entries in the notebook, and that the crucial entry was made by her and signed by her."

     

12. The third requirement, which is the issue in this appeal, is whether the writing of 20 January 2012 in the hand of the deceased, demonstrates a clear and concluded testamentary intention - in other words can the document properly be regarded as a will disposing of the deceased's estate?

     

13. In my view, the answer to this issue requires careful qualitative analysis of the writing in line with the case law which gives important guidance as to how that analysis should proceed.

     

14. In Colvin v Hutchison the First Division, in a reclaiming motion, required to consider a document handwritten in pencil by Mr Brennan then a grocer in Dumfries. The document is headed "Will" and was discovered in a trunk in his shop following his death.It is headed "Will" and "3-500" and then a list of names and figures (which did not add up to 3,500).It was signed by the writer at the side.The Inner House agreed with the Lord Ordinary that the writing was not a testamentary document but decided the appeal on different grounds and for different reasons.The court considered the document to be more akin to a memorandum for some private purpose. Importantly, Colvin decided that no specific form or form of words was required to make a writing into a will or testamentary writing as long as the document discloses the writer's intention to dispose of his estate in whole or in part.The Lord President (Inglis) at page 955 states:

    "I do not think it matters how inelegant, or how imperfect grammatically a testator's language may be, if it can fairly be construed to mean that he bequeaths certain sums of money to certain individuals, sufficiently designed in the writing itself."

     

15. In Draper, the deceased, a widow, left no formal will.The court required to consider a letter sent by the deceased 16 years before her death to her sister which, amongst other things, mentioned her death in the following manner –

    "By the way whilst speaking of dying!  Should anything happen to me, (which it will one day) I haven't made a will, but everything I have is for Billy.  Knowing that he will do the right thing."

     

    The letter was holograph and signed "Connie".  These words were a small part of what was a long and chatty letter from one sister to another.  The court required to decide firstly, whether it was sufficiently subscribed and secondly, whether the letter expressed a concluded testamentary intention to dispose of her estate.  The Second Division agreed that the writing was validly subscribed and that it expressed a clear and concluded testamentary intention.  This case is important for a number of reasons.  It addresses whether an informal writing forming part of a longer letter which deals with a number of other matters can have testamentary effect.  It can.  It also addresses the fact that the letter writer does not tell the recipient to preserve it.  Although this may count against an intention to make a will, that did not displace the effect of the words which clearly indicated an intention to dispose of her estate.  Finally, the matter of subscription, according to Lord Patrick, has a bearing on testamentary intention.  At page 140 he states;-

    "Subscription of holograph writs by signature is required for two purposes.  The first is to identify the writer.  That is fully satisfied here, since the letter and signature are admitted to be written by the testatrix.  The second is to signify that what is written above is the concluded expression of the granter's intention, as set forth in the holograph matter which precedes the signature."

     

16. Finally, the case of Rhodes v Peterson & Anor. 1972 SLT 98 considers the testamentary effect of a letter written by a mother to her daughter in her own handwriting.The letter is subscribed "Lots of love, Mum" and again the questions addressed in Draper were once again considered, namely, whether it was sufficiently authenticated and subscribed and whether there was testamentary intention.In the letter Mrs Peterson clearly expresses her wish that her daughter have the property at 63 Merchison together with its contents.In the letter mention is made of going to solicitors sometime however she adds "but don't worry I will not change my mind".The recipient of the letter is warned "Do not lose this letter".The Lord Ordinary had no hesitation in rejecting the contention that the contents of the letter did not unequivocally express testamentary intention on the part of the deceased.He referred to and followed Draper v Thomason. At page 102 he states:

    "The letter with which the present action is concerned bears to have been written after much thought, and from beginning to end leaves a strong impression of serious and concluded testamentary intention, for which express and convincing reasons are stated.  It is in the plainest terms expressed to be written in contemplation of the writer's death, and the recipient is enjoined not to lose it."

     

    Peterson, in common with Draper and Colvin all confirm the importance of the terms of the writing.  The words of the deceased and the terms of the writing have to be scrutinised carefully to determine whether they are expressing testamentary intention.

     

    DECISION

17. In paragraphs [18] to [34] the sheriff conducts an assessment of the evidence with a view to determining the question of testamentary intention.In so doing he considers other entries in the diary, in particular the entries of 7 February 2010;26 February 2010;16 July 2011 and 10 February 2012.The first three pre-date the writing with which this appeal is concerned.The entries are set out in the sheriff's judgment.In so far as they are relevant at all, they can be regarded as consistent with the entry of 20 January 2012 as "Anne" is to be her sister's heir and the person who will inherit her estate or "left overs".The sheriff construes these entries as detracting from the conclusion that the relevant entry had any special or testamentary effect.Crucially at paragraph [29] the sheriff, having considered the four other entries which had a bearing on the destination of her estate, states:-

    "Each of these is conversational in style.  Each of these deals with a variety of matters and each of these expresses the view that the deceased's estate should be left to her sister Anne.  The fact that there are a number of similar entries, in my view, counts against the crucial entry being accorded special status.  It is simply one of a number of conversational entries, all in similar vein."

     

    And then at paragraph [30]

    "There is a further factor which, in my view, tells very strongly against the crucial entry being considered to be a testamentary document.  It is that the very next entry after the crucial entry, and which is dated 10 February 2012, repeats the same things over again, albeit in different words."

     

    And then at paragraph [31]

    "I cannot understand why the deceased would write out a will all over again if she intended the previous and crucial entry to have special significance, and to be considered to be a document which was intended to govern the disposal of her estate.  This subsequent entry substantially detracts from the idea that the previous entry was intended to have special significance as a testamentary document, even though it was signed."

     

    I consider that the final words of paragraph [31] are very important.  Contrary to the view taken by the sheriff, I am of the opinion that an analysis of the other entries supports the significance of this crucial entry having testamentary effect.  The deceased is consistent in the expression of her wish that "Anne" should inherit.  The decision in "Draper" makes clear the significance of subscription.  It is not only a requirement but its purpose is also to "signify that what is written above is the concluded expression of the granter's intention as set forth in the holograph matter which precedes the signature."  (Lord Patrick supra).  In reaching the conclusion he did the sheriff erred, especially so in the absence of a proper examination of the content of the important entry.

     

18. I agree with the submissions made by counsel for the appellant that the sheriff adopted the wrong approach to the nature or informality of the writing.In paragraph [24] the sheriff appears to count the informality against the document being a will.Reliance by the sheriff on the dicta of Lord McLaren, the Lord Ordinary in Colvin, is unwise.The Lord Ordinary's decision was followed by the First Division however the Lord President expressly disapproves the Lord Ordinary's approach to the words necessary by the testator to give effect to his testamentary intention.The Lord President's Opinion in Colvin remains a sound statement of the law.The court must consider the testator's language however expressed and then construe whether the words fairly bequeath his estate or part of it.Accordingly, the court must examine and interpret the deceased's writing, an exercise which has not been adequately undertaken thus far.

     

19. Unfortunately, I must observe that by placing any significance on delivery or lack of delivery of the document the sheriff misdirected himself.I refer to paragraphs [22] and [23].Delivery has no place in this case.The language of the entry is the critical consideration.Delivery and preservation became factors in Draper and Rhodes given that the court in both cases required to consider letters sent by the deceased.The normal and classic situation, as here, requires an evaluation of documents found either at home or in the hands of a solicitor.Once more, it is difficult to understand the sheriff's reasoning at paragraph [34] where he adverts to an extrinsic writing, namely the diary entry of 7 February 2010, which the sheriff clearly accords much weight as, in the sheriff's words, it "puts the matter beyond doubt".As it is obviously an important matter I shall set out the paragraph.

    "[34]     There is, to my mind, a final factor which really puts the matter beyond doubt, and that comes from a consideration of the postscript to the entry of 7 February 2010.  That entry, which is set out above, ends with the following words:

     

    'P.S. I am of sound mind and body … so don't take this to a 'greedy lawyer!'

     

    In my view this is a very strong factor which suggests that the deceased did not intend any of these entries in which she expressed a wish that her sister Anne should inherit or deal with her estate to be regarded as anything approaching a formal will, or testamentary document.  She expressly states that she does not wish the notebook to be taken to a lawyer.  This can only mean that she took the view that she was not making anything which was to be seen as equivalent to a will, and did not want it used as a will."

     

20. In my view if this entry has a bearing at all on the issue it is equally, if not more, consistent with the entry of 20 January 2012 having testamentary effect.She is asserting that this is her wish; that in the subsequent entry that she is perfectly clear and sound as to her intention;that she does not want there to be any doubt or arguing as to her wishes and therefore there should be no need to get lawyers involved – as now has indeed happened.The sheriff's own findings show that the deceased was "lawyer averse" and she appears to have bought a part printed DIY Will document from RS McColl's in the past.The entry is consistent with her writing in January 2012 being a will and that she personally can decide the destination of her affairs, as was submitted by counsel for the appellant.Accordingly, I cannot agree with the sheriff's reasoning and the effect of his reasoning on the entry of 20 January 2012.Likewise, the reference to alcohol, and the possibility that the deceased may have been under the influence of alcohol is irrelevant and in any event is in conflict with the sheriff's own conclusions on testamentary capacity as set out in paragraph [16].

     

21. The case law requires that the language and wording of the writing be analysed to discover whether the deceased intended that this be her will.In this context, counsel for the appellant argued that the deceased's words clearly pointed to this being her settled will.At the appeal hearing two of the deceased's sisters, Mrs Elizabeth Smith and Mrs Jan Graham appeared.Mrs Smith spoke on behalf of the two sisters who are objecting to confirmation.Mrs Smith, in a short address, urged me not to disturb the sheriff's findings and that the sheriff was in the best position to assess the writing having heard evidence.Mrs Smith was concerned that there may be pages missing from the diary and that given her sister's propensity to alcohol it would be unwise to rely on this document being her will.

     

22. In my opinion all of the writings to which I have been referred and to which the sheriff refers in his judgment, insofar as they are relevant at all are all consistent in the sense that Anne is to inherit. The sheriff appears to agree with that.A plain reading of the entry in the diary indicates perfectly clearly to me that the deceased wished to deal with the destination of her estate and affairs.She states "If Anne is still alive I want her to have wealthy remains".She goes on to specify "the house, pension, savings and everything else". If that was not sufficiently clear the deceased then in capital letters states "IT IS MY WISH". It is fair to assume that the capitals are there for emphasis.The document is in her hand and properly subscribed.In my view it is difficult to contemplate a will in clearer terms.The meaning of the document in the sense of it being a will is obvious to me and unequivocally sets out her wishes and testamentary intentions.Accordingly, I will allow the appeal and recall the sheriff's interlocutors of 21 August and 1 October 2014.I will reserve all questions of expenses in connection with both the petition and appeal procedure.I will grant warrant to the Commissary Clerk to issue confirmation in favour of the appellant Anne McKee Hamilton.

(signed) Mhairi M Stephen