United Kingdom House of Lords Decisions

Lord Dunedin—I agree with your Lordships. I think that Mr Guthrie in acting in preparing the will was called upon to make explanation, but I think he has made ample and full explanation of the most satisfactory kind, and that all allegations of fraud or anything like it have failed. I should like to add that although I concur with the Lord Chancellor in thinking that this case was scarcely one to bring to this House, I think the learned counsel for the appellants was quite right in the course which he took in abandoning the discussion upon the non-execution of the document, because I wish to say that I entirely agree with the judgment of the Inner House upon that point. It is not enough to set aside a probative deed in Scotland that one instrumentary witness simply says that he did not hear the signature acknowledged. That doctrine was upheld by your Lordships' House in the case of Smith v. The Bank of Scotland (June 4, 1824, 2 S. App. 265), but I think the locus classicus in Scotland—and it is an authority which I think ought to have the authority of this House superinduced to it—is the judgment of Lord Mackenzie in Cleland v. Cleland (December 15, 1838, 1 D. 254). There it is put in a single sentence by Lord Mackenzie where he says—“It is more important to observe that no intelligible account is given by them”—that is, the instrumentary witnesses—“why the fact which they now allege should be true.” I think that is the law, and I think that the learned counsel for the appellants was quite right in abandoning that part of the case.

Lord Shaw—I express my entire concurrence upon the point of the execution of the will with the judgment just delivered by Lord Dunedin.

As to the other matter in the case which has been argued to us with such care by Mr Constable, I desire to say that in my opinion there seems to be no substantial difference in the result to be arrived at by the laws of England and Scotland respectively. In the language of Baron Parke in the case of Barry v. Butlin ( 2 Moore's Privy Council Reports 480) the whole hypothesis of fact upon which such a question can arise is stated thus—“If a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite suspicion of the Court.” In this case, in my opinion, having gone through the evidence, I do not think it to be established in point of fact that Mr Guthrie has derived any benefit from this will. On the contrary, he was charged with responsible and irksome duties; and, in my judgment, he has discharged those duties fully, and there is no atmosphere of suspicion therefore brought into the case to enable the doctrines applicable to such a situation to be applied here. Were Mr Guthrie even to have obtained a fragmentary or doubtful advantage under this settlement, the whole question that would then arise is this—Does the will—the document signed by Low—express, or is it established to express, in the language of Baron Parke, the true will of the deceased? It is the same proposition in a more ample form put by Lord Barcaple in Grieve v. Cunningham ( 8 Macph. 317, 7 S.L.R. 196), namely—Was the document the free and uninfluenced act of the testator deliberately entertained and carried through with the entire knowledge of its effect? In my opinion those propositions, whether in the succinct or the ample form, are established in fact in this case. With regard to the situation of Mr Guthrie and the procedure in actions of this kind, I desire to express my entire concurrence with every word of the judgment which your Lordship has delivered from the Woolsack.