Scottish Court of Session Decisions

LORD STOTT'S OPINION—The testator bequeathed his estate to "my wife, Mrs Dorothy Couper" and the question to be decided in this multiple-poinding is whether a beneficiary so described having survived the testator is entitled to receive the bequest notwithstanding the fact that the testator had meanwhile divorced her for desertion. One might have supposed that long ere this the law would have found a, simple answer "yes" or "no" to that question, but, with the possible exception of one Outer House case, it appears that there is no direct authority on the point. Counsel appearing before me were agreed that no question of forfeiture was involved, and that all that arises in the case is the construction of the bequest, but as to how it should be construed there was no agreement. Counsel for the ex-wife submitted that the bequest should go to her. Counsel for certain beneficiaries named in the second purpose "in the event of my said wife predeceasing or not surviving me" (hereinafter referred to as the fourth defenders) submitted that the bequest to the wife having failed the second purpose should be deemed to take effect. Counsel for the heirs ab intestato (the second defenders) supporting the submission that the bequest to the wife had failed contended on the other hand that the estate fell into intestacy, the event upon the occurrence of which the second purpose was dependent not having occurred.

From the authorities to which I was referred, it seems that the effect of such a bequest in the circumstances which have occurred depends on whether or not it is in the nature of a family provision, made to the wife as wife, with the consequence that when she ceases to be the testator's wife the condition of the bequest no longer applies. In Hedderwick v. Morison (1901) 4 F. 163, Lord J.-C. Macdonald (at page 167) said that in ordinary circumstances a provision made by a husband for his wife would fall on her being divorced. That, however, was a case of an inter vivos trust assignation and the decision turned on forfeiture which ex concessu does not arise here. It followed on Ritchie v. Ritchie's Trustees (1874) 1 R. 987, again a decision arising on an inter vivos deed, in relation to which L.P. Inglis observed that it was a fixed rule of law that a divorced spouse could not claim any provision made upon her as a wife or in prospect of her viduity. "It is quite impossible to read that portion of Mr. Ritchie's trust deed without seeing that the settlement was made emphatically on his wife because she was his wife"—Ritchieat page 989. In the Outer House case of Towse's Trustee v. Towse 1924 S.L.T. 465 Lord Blackburn applied the ratio of these decisions to a testamentary provision holding that on being divorced the wife forfeited her right to the provision made for her in her husband's will.

A similar result was reached in Pirie's Trustees v. Pirie 1962 S.C. 43, which along with Towseconstituted the sheet anchor of the second and fourth defenders' contention. The testator in his trust disposition and settlement conferred on his wife Mrs Pirie, in the event of her surviving him, an alimentary liferent of the free residue of his estate "and that for her own maintenance and support and for the maintenance and support of my children, so long as they may continue to reside in family with her and be unable to maintain themselves." He went on to dispose of the fee of the estate in favour of his children and their issue, and declared that these provisions in favour of his wife and children should be in full of all legal rights in his estate. By a codicil executed 3 years after the date of execution of the trust disposition, and in the knowledge that meanwhile she had committed adultery with a Mr Bain, he declared that any interest or benefit which his wife had under the will should not take effect in the event of her marrying or living with or committing mis-conduct with Mr Bain. The wife did not in fact do any of these things, but the husband having divorced her six years later on the ground of the prior adultery the court held that she was no longer qualified to receive the benefit. L.P. Clyde observed that the question was whether the gift conferred by the testator was given to her in her capacity as his wife, and citing the words of L.P. Inglis in Ritchie concluded that the nature of the provision and the language used compelled him to the same conclusion. Lord Guthrie thought it was an implied condition of the bequest that the beneficiary should be the wife of the testator at his death, and adopted the reasoning of Lord Blackburn in Towse except in so far as he relied upon the rule of forfeiture.

Nothing of such striking significance is to be found in the language of the will that I have to construe. There is indeed a declaration that the provisions in favour of the wife shall remain in full force and effect, notwithstanding the birth of a child, a declaration which was prayed in aid on both sides of the argument, by counsel for the wife on the view that it showed that the settlement was not intended to be a family one and by counsel for the other parties as indicating that the bequest to the wife must have been intended to be used for the benefit of any family there might be. I could find nothing in the declaration to favour one view rather than the other. Nor was I persuaded by counsel for the wife that the use in the later parts of the will of such descriptive phrases as "my brother," "my sister," "my mother in law," threw any light on the construction of the bequest in her favour. Counsel for the other parties for their part were unable to point to anything in the language of the will of such a compulsive character as that which influenced the decisions in Towse and Pirie. They founded, however, on section 13 of the Succession (Scotland) Act 1964, which, it was argued, imported into the will by implication of law the very type of provision that the court had found so compelling in the earlier cases. So far as Pirie is concerned I do not think that that is so. The words used by the testator there included other and more powerful indicia of a family provision than the declaration that provisions were to be taken in lieu of legal rights, and in Towse Lord Blackburn found the settlement to be "of a matrimonial and family character," quite apart from any reference to the provision in relation to legal rights. In any event I am of opinion that counsel in seeking to found on section 13 of the Act have read more into the section than is warranted by its terms. The section provides that any testamentary disposition made after the commencement of the Act in favour of a spouse shall have effect as if it contained a declaration that the provision was in full satisfaction of legal rights. The section is, of course, as its side note indicates, concerned with the doctrine of equitable compensation, and it would be strange if it were found to have the incidental effect of qualifying a bequest in favour of a spouse, a purpose for which plainly it was never intended. It may well be that one of the consequences of the enactment of section 13 is to make it more difficult to decide whether a provision to a wife is in the nature of a family provision or not, since one of the possible indicia of a family settlement will no longer be expressed in the will. But I cannot think that when a testator makes an unqualified bequest to his wife content that the law of compensation should apply in terms of the Act he must thereby be deemed ipso facto to have executed a family settlement. In the end of the day counsel were driven back to the simple question of the inference to be drawn from the designation of the beneficiary as wife, plus the fact that the settlement upon her was a universal settlement.

The Outer House case to which I referred at the outset is Henderson's J.F. v. Henderson 1930 S.L.T. 743 in which Lord Mackay with the assistance of a formidable array of distinguished counsel held that a bequest in similar terms to the present should receive effect albeit that in consequence of a decree of divorce the beneficiary was no longer the testator's wife at the date of his death. It was sought to distinguish the case from the present one on the ground that the will was executed in the knowledge that an action of divorce had been served upon the testator two days before at the instance of his wife, whereas the present testator might not have had divorce within his contemplation. In a case such as this where the will was allowed to remain unaltered for the period of more than eight months which elapsed between the divorce and the date of the testator's death the idea that the testator had not thought about the possibility of divorce seems to me somewhat artificial, and I was even less impressed by the suggestion that the testator, being presumed to be aware of what the law was, had left the bequest to his wife standing in the knowledge that in view of the divorce his estate would in any event pass to the heirs in intestacy or the other legatees. But be that as it may Lord Mackay's judgment does not proceed on any speciality in relation to the state of the testator's knowledge, but from the general proposition, to be found in the concluding paragraph of his opinion, that a mere term of description "my wife," correct as at the date of the will, does not fall to be read as meaning "my wife, only if she remains my wife." In reaching that conclusion Lord Mackay referred to the English case of In re Boddington (1883) 23 Ch. Div. 597, (1884) 25 Ch. Div. 685, in which Fry J. had upheld a legacy in similar terms, despite the annulment of the marriage. The case having gone to the Court of Appeal on another point, Fry J.'s ground of decision was not only acquiesced in but was expressly adopted by the Lord Chancellor (Lord Selborne) in distinguishing between a bequest under an express condition and what was given by a testator to the beneficiary under the description of "wife." "De facto she was his wife when the will was made, so there is no ground for imagining that he intended to do more than describe her as at that time she would be naturally and commonly described." I should perhaps interpolate that two other English cases cited to a contrary effect by counsel for the fourth defenders (In re Morrieson (1899) 40 Ch. Div. 30, In re Williams Settlement (1929) 2 Ch. 361), have in my opinion no bearing on the question at issue, being concerned with the date of ascertainment of unnamed beneficiaries.

Henderson's J.F. was cited in Pirieand again in Ormiston's Executors v. Laws, 1966 S.C. 47, where it was held that in a bequest to "my fiancée Mrs. Martis" the words "my fiancée" were descriptive only and that Mrs Martis was entitled to the legacy, notwithstanding that at the date of the testator's death she was not and never had been his fiancée. In neither case was any adverse comment or indeed any comment at all passed by the court on the ratio of the decision in Henderson. I respectfully agree with that decision and with the reasoning on which it was founded. It is plainly applicable to the circumstances of the present case. Here as in Henderson the legatee is identified in the bequest and, since I can find in the words of the will neither an express condition nor any clear implication of such, I am of opinion that the bequest to Mrs Valentine should take effect in accordance with its terms. That is sufficient for the decision of the case and I have been asked to defer any order of ranking and preference until certain formalities have been carried through.