Scottish Court of Session Decisions

At advising on 16th February 1979, the opinion of the Court was delivered by the Lord Justice-Clerk.

LORD JUSTICE-CLERK (Wheatley).—The late Jacob Sebastian (hereinafter referred to as "the testator") died in Stirling on 17th March 1978. He left a purported Will (hereinafter referred to as "the Will") dated 26th October 1977. At the time the Will was made the testator declared his inability to write and the Will was accordingly executed notarially, being signed on behalf of the testator by Ronald Stuart Sutherland, Solicitor and Notary Public, Dunblane. By the Will, James Millar, Alva, was appointed trustee and executor, whom failing the appellant, who was and is a solicitor and a partner of the said Ronald Stuart Sutherland. The testator's whole means and estate were assigned and disponed to his trustees in trust for the purposes set out in the Will. James Millar died shortly after the testator without having accepted office or applied for Confirmation as executor. The appellant, by petition, applied to the Sheriff at Alloa to grant warrant to the Commissary Clerk to issue Confirmation in favour of the appellant as executor nominate of the testator. By interlocutor dated 12th September 1978 the Sheriff refused the application and against that interlocutor the present appeal is taken.

The broad general principle upon which falls to be determined the validity of a notarially executed Deed is thus stated by Lord President Cooper in Finlay v. Finlay's Trs . 1948 S.C. 16 at p. 24:

"The authorities cited to us demonstrate that, not only in Scotland but in many other countries, the notary public has enjoyed from the earliest times a very privileged position as a public functionary, his privilege depending very properly upon his disinterested independence of the transactions which he records or the judicial acts which he performs. In Scotland the series of cases from Farrier v. Smith 9th June 1813 F.C. to Wall's Excrs.(55 Sh. Ct. Rep 53: 1939 S.L.T. (Sh. Ct.) 10), illustrate the progressive delimitation of the principle of independence, and the progressive definition of the type of interest which will disqualify. In our judgment, it necessarily follows from that tract of cases, and from the legal principles on which they have been based, that when a Will is notarially executed by a notary whose partner in a solicitor's business is appointed in the Will as a trustee, and when the Will contains the now familiar clause authorising the employment and remuneration of a trustee as law agent of the trust, then that notary has a disqualifying interest which invalidates his execution of the Deed."

We deal later in more detail with the critical question as to what amounts to "disinterested independence." At this point, in order to narrow the issue upon which we have to adjudicate, we refer to a number of particular types of case in which it has been authoritatively laid down that the notary who executed the Will was "interested" sufficiently to disqualify him from acting as notary. In any such case it is not disputed that the Will falls to be treated as unsigned and accordingly funditus null: Ferrie v. Ferrie's Trs . 1 Macph. 291: Finlay's Trs. cit. supra: Irving v. Snow 1956 SC 257. Into this category falls the case where the notary is himself appointed a trustee in the Will: Ferrie's Trs. cit supra: Chisholm v. Macrae 11 S.L.T. 416; the case where although the notary executing the Will is not himself appointed a trustee there is a clause in the Will authorising the trustee to appoint the notary law agent of the trust: Ferrie's Trs. cit. supra: per Lord Deas at p. 297: Newstead v. Dansken 1918 1 S.L.T. 136: Finlay's Trs. cit. supra per Lord Sorn at p. 19; and the case in which a partner in the legal firm of the notary is appointed a trustee by the Will and the trustees are authorised to employ and remunerate one of themselves as law agent of the trust: Finlay's Trs. cit. supra: Gorrie's Trs. v. Stiven's Exr . 1952 S.C. 1: Crawford's Trs. v. Glasgow Royal Infirmary and Others 1955 S.C. 367. In this last type of case an express power to remunerate would seem unnecessary since such a power is implied in the power to employ as law agent: Lewis's Trs. v. Pirie 1912 S.C. 574.

There is no authority covering the precise circumstances of the present case in which the testator's whole estate was conveyed in trust to a partner of the solicitor who executed the Will as notary and there is in the Will no clause authorising the employment (and remuneration) of a trustee as law agent of the trust. The question here is: in such a case has the notary such an interest as to disqualify him from executing the Will so that the Will is null? The answer to that question is to be found in the terms of the deed, and the tempus inspiciendum is the date of its execution.

Two types of disqualifying interest are recognised by the authorities: see Lord Sorn in Finlay's Trs. cit. supra at p. 19. There is firstly the interest of the notary in cases where he is himself appointed disponee, albeit as trustee, and secondly there is the interest of the notary in cases where he or a solicitor partner is appointed trustee and in terms of the Will a trustee may be appointed law agent of the trust.

Before us counsel for the respondents founded on both these grounds as disqualifying the appellant's partner from acting as notary in the execution of the Will. As to the first it was submitted that if, as is not disputed, the notary would have been disqualified from acting as notary had he himself been made disponee, albeit as trustee, in the Will, the same result necessarily follows if his partner and not he himself was so made disponee. It was submitted that the mere fact of partnership was in such a case sufficient to disqualify the trustee's partner from acting as notary. As regards the second ground counsel for the respondents submitted that even in the absence of any clause in the Will authorising the employment of a trustee as agent of the trust, when the notary executing the Deed of his partner is appointed trustee the notary has such a disqualifying interest as to render the Will null, the disqualifying interest being the possibility of the trustee, be he the notary or the partner of the notary, becoming law agent of the trust by agreement of all the beneficiaries or by their acquiescence.

In reply counsel for the appellant submitted that the appointment as trustee disponee of a partner of the notary was a matter personal to the appointee. His position as partner was in no way affected or involved and accordingly the appointment created no disqualifying interest in the notary. As regards the second ground, counsel for the appellant submitted that in the absence of a clause in the deed authorising the trustee to employ one of their own number as law agent for the trust no trustee could accept professional remuneration for services as law agent of the trust unless there was an agreement to that effect or acquiescence in that course by all the beneficiaries. In that event the benefit to the trustee (and it might be to the partnership of which he was a member) would result not from the terms of the will but from the separate and independent actings of the beneficiaries.

In considering whether in the circumstances of the present case the appellant's partner had an interest in the Will such as to disqualify him from acting as notary we have regard first to judicial dicta as to what constitutes a "disqualifying interest." Ferrie's Trs. cit. supra was a case in which subscription of a will by two notaries was required. One of them, Mr Paterson, was appointed one of five trustees and there was a clause in the Will authorising the employment and remuneration of a trustee as law agent of the trust. It was held that the notary who was also appointed trustee was disqualified from acting as notary in the execution of the Will. Lord President M'Neill said "On the face of the deed Mr Paterson, one of the two notaries employed, had an interest in it. He is disponee under the deed—in trust no doubt and but one of several. But it is in vain to say that he had no interest in it when by the terms of the deed the whole estate might have been put into his hands and under his management, and that, too, with an express dispensation of the ordinary law as to remuneration for such services. It is essential to security in such mode of subscription that the notaries be free from interest under the deed. Supposing that both the notaries had been disponees under the deed, or had even a remoter interest in it, what assurance would we have had that this was the deed of Mr Ferrie? The case is not materially altered by the fact that only one of them was in that position because one notary is not enough and because the object of preventing the same person from acting in such double capacity is to secure the perfect purity of the act done" (pp. 296–297). Lord Ardmillan put the matter thus (p. 302):

"The theory of our law and the well established practice of the legal profession is, that a notary public acting officially ought to be absolutely independent. It appears to me to be settled that a notary cannot act effectually in his official character when he is himself a party or is personally interested in the act which he performs as notary. It is essential to the ends of justice, to the protection of the rights of parties and to the securing of purity in a public office that the official act of a notary when he is himself a party interested shall receive no effect."

In Lang v, Lang's Trs. 16 R 590, a case which related to a marriage contract, Lord Rutherford Clark (at p. 598) said:

"It is of great importance to preserve the purity of the office of notary and to require that he shall not be under any influence which might induce him to be either corrupt or careless in the discharge of his duty."

In the Sheriff Court case of Wall's Executors (also reported as "The Trustees of XY") cit. supra Sheriff Brown, after referring to Ferrie's Trs. and Lang's Trs. (both cit. supra) said "Any interest in or benefit to the notary, even although it be contingent and not indefeasible, destroys his purity as a notary in the eye of the law as it might lead to corruption in the case of an unscrupulous person or persons." In Finlay's Trustees cit. supra Lord President Cooper dealt with an argument that the "interest" there was only "potential and contingent," and said this (p. 24):

"It was argued that the interest was only potential and contingent: but I have no doubt that the interest was not illusory and that it was sufficiently real and sufficiently likely to impinge upon the principle of independence as that principle has been explained and applied."

In Hynd's Tr. v. Hynd's Trs . 1955 S.C. (H.L.) 1 Lord Morton of Henryton (p. 14) and Lord Reid (at p. 21) both expressed the view that a Will was valid where it was executed notarially by an employee of a legal firm whose partners had an interest in the Will which would have disqualified them from acting as notaries in its execution. A "beneficial interest" or a "personal interest" was essential to disqualify a notary from acting.

Against this background of authority we have no difficulty in appreciating and in accepting as absolute the rule that a trustee appointed by a Will has such an interest as to disqualify him from executing the Will as notary. He has, or may acquire, control over the whole estate as disponee, albeit trustee disponee, and both as a matter of principle and on authority the probability or even the reasonable possibility of his acquiring such control is sufficient to disqualify him from acting as notary in the execution of the deed. We add that it is in our opinion not without significance that this result has nothing to do with the notary's position as a legal practitioner. The position is precisely the same if the trustee who executes the Deed notarially is not a professional lawyer at all; he may be, e.g. a minister. Chisholm v. Macrae cit. supra . Every reported case in which the notary and a trustee have been partners in a legal firm—except possibly Wall's Executors cit. supra—appears to have been decided on a consideration of the two grounds of disqualification of the notary, viz. the appointment of him or his partner as trustee and the existence in the will of the usual clause authorising the trustees to appoint one of their number to be law agent of the trust. It is not entirely clear from the very brief report of the case what the position as regards such a clause was in Wall's Excrs. cit. supra, but looking to what Lord President Cooper said in Finlay's Trustees cit. supra(at p. 24) we consider it most unlikely that such a clause was not present in the Will in Wall's Excrs. The learned Sheriff on this branch of the case pointed to certain dicta in some of the authorities already cited as showing that the Court would have held the notary disqualified from acting even if the Will contained no clause authorising the employment of a trustee as law agent of the trust, e.g. Ferrie's Trs., Finlay's Trs. per Lord Sorn at p. 18 and Lord Carmont at p. 26, Gorrie's Trs. and Crawford's Trs.per Lord Wheatley at p. 370. Viewed in isolation these dictamay appear to give some support to the conclusion reached by the Sheriff but strictly they were all obiter dicta and when read in their proper contexts none can in our opinion be taken to substantiate the proposition that the appointment as trustee of a solicitor partner of the notary per se disqualifies the notary from acting in the execution of the Will. As far as we are aware it has never been suggested that where an appointed trustee is an intimate relation or close business associate of a notary the latter is thereby disqualified from executing the will as notary. We can see no difference in principle between such a case and the present, and in the absence of authority—a circumstance which may in itself be significant—we are not prepared to hold that in the present case the mere fact that the appointee trustee is in partnership with the notary in a legal business disqualifies the notary from executing the deed. It was suggested by counsel for the respondent that this was inconsistent with what was said by Lord Sorn in Finlay's Trs. at p. 20, namely:

"It follows that if there is a practice of one partner executing notarially a will in which another partner is named as a trustee, it is a practice which should be abandoned."

This, however, was said in the context of a settlement which contained a remuneration clause and we endorse that statement in so far as it relates to the circumstances there present, not just because it is bad practice, but because it renders the deed null. It was not said in relation to a deed which has no remuneration clause. Accordingly where the notary himself is appointed as trustee that in itself is sufficient to render the deed null. Where, however, the deed appoints his partner as trustee something more is required. That something more is what has been described as a disqualifying interest. What constitutes a disqualifying interest will depend on the facts of the individual case.

We turn now to consider the effect upon the notary's position in the absence from the Will of a clause authorising the trustees to appoint one of their number to be law agent of the trust. It is not disputed that the existence of such a clause would have disqualified the notary from acting on the ground of a disqualifying interest and it is equally not disputed that in the absence of such a clause the trustee could not legally receive fees for professional services rendered to the trust unless all the beneficiaries agreed or acquiesced in that course. We accept that an interest may disqualify a notary although it is only "potential and contingent." Lord President Cooper in Finlay's Trs. cit. supra p. 24. In our opinion, however, the whole point and justification for having in a will the common clause authorising the trustees to appoint one of their own number as law agent of the trust lie in the consideration that in the absence of such a clause no trustee will be entitled to act and be remunerated for services done as agent for the trust. Looking at the Will here, we can see nothing to support the suggestion that the notary had any interest sufficient to disqualify him from executing the deed. Moreover this view is in our opinion fortified by a consideration of the authorities. The effect upon the position of a notary of a clause authorising trustees to employ and remunerate one of their own number as law agent of the trust where the notary or a partner of his is appointed a trustee has been considered fully in several of the cases already cited. We need refer specifically only to Ferrie's Trs. and Finlay's Trs. In neither of these cases—and in no other case cited to us—did any of the judges express the view or even remotely suggest as a possible view that the notary had a disqualifying interest whether or not there was such a clause in the Will. On the contrary, reference express or clearly implied to the important effect of such a clause on the notary's position is made in Ferrie's Trs. by Lord President M'Neill, and Lords Curriehill, Deas and Ardmillan, and in Finlay's Trs by Lord Sorn (with whom Lords Russell and Keith agreed), Lord President Cooper and Lord Carmont. It is true that in these cases the effect of the absence of such a clause in the will was not directly in issue. But we find it difficult to conceive that the judges in Ferrie's Trs. and Finlay's Trs. and the other cases referred to would have expressed themselves as they did had they been of the view pressed by the respondents and accepted in substance by the Sheriff to the effect that the mere fact of partnership between the notary and the trustee disqualified the notary from executing the Will whether or not there was in the Will a clause authorising the employment of a trustee as law agent of the trust. In our opinion there is a clear distinction to be drawn between the case where the Will contains such a clause and so gives the notary as partner in the legal firm an obvious interest, and the case where such an interest is not given by the deed and could only arise in the notary, if at all, as a result of separate and independent actings on the part of all the beneficiaries at some future date. Applying the test used by Lord President Cooper in Finlay's Trs. at p. 24, we do not consider that the interest here can be said to be sufficiently real and sufficiently likely to be realised as to constitute a disqualification.

We have found the point at issue a narrow and difficult one but for the reasons we have given we have reached the opinion that the Sheriff's conclusion is unsound in law. We shall accordingly allow the appeal and grant warrant to the Commissary Clerk to issue Confirmation in favour of the appellant as craved.