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(Before the
( Ante, Dec. 13, 1898, Vol. xxxvi. p. 200, and 1 F. 253.)
Subject_Fraud — Undue Influence — Agent and Client.
Facts:
Opinion (by the Lord Chancellor and Lord Robertson) that where a will is made in favour of a law-agent by a client, but is prepared and carried through by an independent law-agent, then in the absence of collusion between the two law-agents the onus of proving that the will was obtained by undue influence on the part of the agent benefited by it rests, as in the ordinary case, upon the persons challenging the will.
Evidence upon which held ( aff. the judgment of Second Division) that even assuming the onus in such a case to lie upon the law-agent, he had proved sufficiently that the making of the will in his favour was the free and deliberate act of his client.
This case is reported ante, ut supra.
The pursuers appealed against the judgment of the Second Division.
At delivering judgment—
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With respect to the first issue, of course it is the duty of the person propounding a will to show that it is the will of the testator or testatrix. That includes its execution and the sanity and testamentary capacity of the person who has executed it. If doubt is left on either of these propositions the ordinary consequence of law follows, namely, that the person whose duty it is to establish the proposition has failed to establish it, and therefore the judgment would be against him. But with respect to the other and totally different issue, it rests upon those who dispute the will to show that although by the hypothesis it is the will of the testatrix, and although by the hypothesis the testatrix was in a condition in which she could properly exercise volition, yet that volition has not been exercised, and the actual execution of the will being admitted, and the fact of the general capacity of the testatrix to execute it being admitted, there is an additional fact, namely, fraud or coercion, under which the thing was done. It appears to me that the whole difficulty of the argument of the learned counsel is that he has not put his finger upon anything that shows that the first issue has not been established, and that then when it comes to his turn to establish the other issue, he has been wholly unable to point to facts upon which he can rely to establish it. The question of what is undue influence has been before your Lordships' House, and although that, like every question of this sort, has to be judged of by the circumstances of the particular case with which the learned Judges in the Court below or your Lordships are dealing, yet it appears to me that Lord Cranworth gives a good general exposition of what the law is on the subject, which it is worth while to quote, because some propositions have been advanced before your Lordships to which I at all events could not assent, and which I think could not be assented to consistently with the judgment of this House, to which I refer, namely, in the case of Boyse v. Rossborough ( 6 H. of L. Cas. 47). Lord Cranworth says this—“The difficulty of deciding such a question arises from the difficulty of defining with distinctness what is undue influence. In a popular sense we often speak of a person exercising undue influence over another, when the influence certainly is not of a nature which would invalidate a will. A young man is often led into dissipation by following the example of a companion of riper years to whom he looks up and who leads him to consider habits of dissipation as venial and perhaps even creditable; the companion is then correctly said to exercise an undue influence. But if in these circumstances the young man, influenced by his regard for the person who had thus led him astray, were to make a will and leave to him everything he possessed, such a will could certainly not be impeached on the ground of undue influence. Nor would the case be altered merely because the companion had urged, or even importuned, the young man so to dispose of his property, provided only that in making such a will the young man was really carrying into effect his own intention formed without either coercion or fraud. I must further remark that all the difficulties of defining the point at which influence exerted over the mind of a testator becomes so pressing as to be properly described as coercion, are greatly enhanced when the question is one between husband and wife.” [There his Lordship was referring to the facts of the particular case]. “The relation constituted by marriage is of a nature which makes it as difficult to inquire, as it would be impolitic to permit inquiry, into all which may have passed in the intimate union of affections and interests which it is the paramount purpose of that connection to cherish, and this is the case with which your Lordships have now to deal. In order, therefore, to have something to guide us in our inquiries on this very difficult subject, I am prepared to say that influence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or by fraud. In the interpretation, indeed, of these words some latitude must be allowed. In order to come to the conclusion that a will has been obtained by coercion, it is not necessary to establish that actual violence has been used or even threatened. The conduct of a person in vigorous health towards one feeble in body, even though not unsound in mind, may be such as to excite terror and make him execute as his will an instrument which, if he had been free from such influence he would not have executed. Imaginary terrors may have been created sufficient to deprive him of free agency. A will thus made may possibly be described as obtained by coercion. So as to fraud. If a wife by falsehood raises prejudices in the mind of her husband against those who would be the natural objects of his bounty, and by contrivance keeps him from intercourse with his relatives, to the end that these impressions which she knows he thus had formed to their disadvantage may never be removed, such contrivance may perhaps be equivalent to positive fraud, and may render invalid any will executed under false impressions thus kept alive. It is, however, extremely difficult to state in the abstract what acts will constitute undue influence in questions of this nature. It is sufficient to say that allowing a fair latitude of construction, they must range themselves under one or other of these heads—coercion or fraud.”
Now, that is the expression of opinion given by a very learned Judge in this House, and assented to by the judgment of your Lordships' House in the conclusion to which they came. Taking that as my guide, and giving every latitude of interpretation to the words “coercion and fraud,” and having satisfied myself in the first instance that this was undoubtedly the intelligent act of a sane and capable testatrix, I ask myself what possible evidence is there here of any coercion or fraud, giving the fullest latitude which could be
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The only other question arises from a supposed contradiction between one of the documents which has been produced and the evidence. It is said, Here is a letter written by the lady, asking for something to be done which she would have known perfectly well, if it was her own uninfluenced act, was already done a week before. Undoubtedly the dates raise that contradiction. I am sure I do not know myself what the truth of that matter may be. It may be they misdated the letter, or it may be that it was something that was thought of afterwards. But just let us consider what is the conclusion one is asked to draw from that contradiction, namely, that this was something which the conspirators (because that is what it comes to) had contrived for the purpose of being found afterwards and so establishing the fact of the lady so intervening in her affairs that she was to be held to have been a capable and sane testatrix. Really it requires a considerable amount of ingenuity to come to that conclusion. That the letter is in her own handwriting appears to be undoubted. It was produced by Mr Grace's son as having been found amongst her papers afterwards. What was the necessity for this? Apparently to establish a contradiction. If one was to put in definite language the meaning of it—if this was a thing contrived by Mr Grace for the purpose of giving credibility and plausibility to his case afterwards, what would have been so easy as to put a date that would make it correspond, or leave it undated? You are to suppose a contrivance beforehand. It is said the lady must have defeated this ingenious contrivance by dating it, and that is what has made it unfortunately not coherent with the rest of the case. How in any court of justice can such an argument be heard? You are to imagine a whole series of events and to argue upon that imagination, and then again you are further from that to argue that Mr Grace and his son had been conspiring with this amount of fraud to misrepresent what these two ladies had done. I am wholly unable to follow such an argument. In a court of justice you are not to presume fraud. You are not wherever there is contradiction necessarily to suppose perjury on the one side or the other. It appears to me there is no foundation for any such imputation upon either of the Mr Graces, and I should be sorry to say, or even to think, that such a suspicion should be entertained without evidence to support it.
It appears to me, therefore, that the decision upon the facts arrived at by the Lord Ordinary and affirmed by the Second Division of the Court of Session ought to be affirmed, and this appeal dismissed, with costs.
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I do not think that any blame attaches to Mr Grace in respect of any part of this transaction. I think he acted, as far as I can see, properly throughout. If any blame attaches to anybody, perhaps some blame was attributable to Mr Lyon, because I think it was his duty to have obtained and preserved in the handwriting of these ladies, or the survivor of these ladies, clear proof that this was her own will, and I think it is possible that if Mr Robertson had not been living and had not been examined some sort of suspicion might have arisen, because there was one rather curious point. He was told to go to Mr Grace for directions. If that had not been explained there might have been some suspicion excited, but it turns out that the direction which he was told to go to Mr Grace for was simply to find out in what street or at what place the lady was living. I do not think there is any ground for the suspicion which has been cast upon Mr Grace at the bar, and I entirely agree that the judgment of the Court below ought to be affirmed with costs.
Appeal dismissed with costs.
Counsel for Appellants— Bargrave Deane, Q. C.— Robertson Christie. Agent— Gordon M. Folkard, for Simpson & Marwick, W.S.
Counsel for the Respondents—Dean of Faculty ( Asher, Q.C.)— C. K. Mackenzie— R. H. Pritchard. Agents— William Robertson & Co., for Mackenzie & Kermack, W.S.