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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacDonald v MacCallum [2003] ScotCS 240 (29 August 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/240.html Cite as: [2003] ScotCS 240 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD EMSLIE in the cause DUNCAN MacDONALD Pursuer; against DUNCAN McCALLUM Defender: ________________ |
Pursuer: Mitchell Q.C.; I F Maclean; Balfour & Manson
Defender: Kelly; Drummond Miller, W.S.
29 August 2003
Introduction
[1] In this action the pursuer seeks reduction of (i) a letter and (ii) a will bearing to have been executed in early 1997 by his now-deceased elder brother John. He alleges that these documents were impetrated from John MacDonald (hereinafter referred to as "the deceased") by fraud, or alternatively by fraud and circumvention when the deceased was in a condition of weakness and facility. At the time of his death the deceased was the tenant of a croft known as Tigh-na-Mara, Back of Keppoch, Arisaig, and the documents in question both purported to dispose of his interest in the tenancy in favour of his nephew, the defender. The tenancy was inherited by the deceased from his father in the 1950s and appears to have been in the MacDonald family for some considerable time before that. There was, however, a suggestion that the deceased's grandfather might have inherited it from an aunt bearing the surname Campbell. [2] Owing to age and infirmity the pursuer, who lived on the croft with the deceased and their sister Jessie from about 1992, now resides in a nursing home in Fort William. The present proceedings are carried on by his son Ronald by virtue of a power of attorney in that regard. Similarly, on account of ill health, the defender has granted a power of attorney in favour of his wife Therese, and she accordingly maintains his interest in this action. The present dispute is therefore between two collateral branches of the deceased's family, the deceased himself having died unmarried and without children. The question is whether the deceased truly intended to bequeath the tenancy of the croft, not to his brother the pursuer, but to the defender who was the son of their predeceasing sister Mary. [3] For some years prior to his death on 2 June 1997, the deceased was increasingly in a poor state of health. He had endured a number of strokes and suffered from a variety of illnesses and conditions. By 1997 he was suffering form cancer; he was prone to repeated urinary tract infections; and he also had a fall necessitating his admission to hospital. He was weak, emaciated and frail, and would latterly remain in bed for much of the day. Much of the evidence at the proof which took place before me on 17 June 2003 and eight further days concerned (i) the mental and physical condition of the deceased in late March/early April 1997 when the documents under challenge bore to have been executed; and (ii) the circumstances in which they respectively came into existence. The pursuer's contention was that if the deceased had truly been in control of his own affairs at the material time, he would never have executed a will at all, far less one in favour of the defender. It was accordingly maintained that the deceased had been a victim of fraud, failing which that the documents in question owed their existence to circumvention on the defender's behalf which the deceased was in no condition to resist. On Record a question appeared to arise as to the authenticity of the deceased's signature in each case, but in the end this aspect of the matter was not really in dispute. The pursuer led no positive evidence to prove that the relevant signatures were not truly those of the deceased, and indeed adduced a handwriting expert, John McLean, who explained that in his opinion the signatures in question were genuine notwithstanding a contrary view having been reached by the Grampian Police. Mr McLean's opinion was consistent with the evidence of the defender's daughter, who gave direct evidence of having seen the deceased sign in her presence on both occasions. In these circumstances, I proceed on the basis that both documents were in fact executed by the deceased on the respective dates appended beneath his signature. [4] As a result of the infirmity of both the pursuer and the defender, the Court has been deprived of potentially crucial first-hand evidence on many of the factual issues arising in the action. Thirteen witnesses did give evidence at the proof, and three more on commission, and some of what they said concerned things to which they themselves could speak directly from their own knowledge. However, both sides led a considerable amount of hearsay evidence, much of which was uncorroborated and of an imprecise nature. Whatever may be the perceived merits of sections 1 and 2 of the Civil Evidence (Scotland) Act 1988 by which, for the purposes of civil proceedings, the rule requiring corroboration was abolished and hearsay evidence was declared admissible, undue reliance on these provisions greatly increases the Court's difficulty in resolving multiple disputed issues of fact in a case such as the present. At times during the proof, I had the impression of being regaled with the polarised "understanding" of local residents and others whose allegiance appeared to lie with one collateral branch or the other of the deceased's family. Much factual information was said to originate from the pursuer, the defender, the deceased and others who were not available to confirm or deny what was attributed to them. The hearsay adduced often left the precise nature and timing of past events unclear, and in more than one instance I heard different witnesses attribute a particular alleged conversation or event to different dates, circumstances and locations. Accordingly, in approaching this matter, I have sought to minimise the impact of such difficulties by relying, where possible, on direct first-hand evidence and by accepting hearsay only where supported to some degree from other sources. I have also sought to concentrate on the central issues in dispute between the parties, rather than on the many peripheral issues which were the subject of evidence at the proof. In addition, I have discounted the subjective opinions volunteered on each side as to whether the pursuer or the defender was the more suitable or deserving successor to the tenancy of the croft. In my judgement such opinions were too speculative and partial to rely on, and it seems to me that the real question is what, if anything, the deceased actually intended vis-à-vis the testamentary disposal of his interest in the croft. The evidence did not, in any event, persuade me that such a disposal in favour of either party should be regarded as inappropriate from the point of view of their relationship with the deceased. [5] In summary the pursuer's position was that, on the evidence, the deceased had had a life long aversion to lawyers and all things legal; that he had repeatedly refused to make a will regulating the succession to the croft despite being exhorted to do so by the pursuer, the defender, his cousin John Gladman and more than one member of the priesthood; that he believed, perhaps erroneously, that the croft would automatically pass to his brother the pursuer as his nearest male relative; that by late March/early April 1997 he was in a weak and facile state; and that as a result of this, and without there being any apparent justification for a change in his attitude, he was induced by the defender's daughter to execute the letter and the will in the defender's favour. By way of support for these contentions, the pursuer maintained that the circumstances leading up to the execution of these documents were highly suspicious. The defender, who suffered from multiple sclerosis and would not have been physically able to work the croft, moved up from Glasgow in about February 1997 to live in his own caravan on the site, and was thereafter in frequent contact with the deceased. A short while later, the defender's daughter Christine joined him there, ostensibly to look after him and also to spend time with the deceased' sister, Jessie, who suffered from advanced dementia. From then on, the defender and his daughter both assumed an active role in the running of the croft and associated caravan site, and their involvement with the deceased became so extensive that the pursuer began to express concern to family and friends. Christine McCallum was the only person present when the deceased signed the letter and will on 29 March 1997 and 2 April 1997 respectively, and both documents were in her handwriting. The alleged witness to both documents, the deceased's home help Catherine Joan Stewart, was not present on either occasion, and according to Mr McLean's expert evidence her signature on both documents was forged. The letter was addressed to Mr E D McMillan, the landlord of the croft, but although it was taken by Christine McCallum to his house it was not given nor even shown to him at that time. On the following day, ostensibly prompted by a telephone call from Mr McMillan to the defender (which the former denied making), the defender and his wife took the letter to a solicitor in Fort William, Mr Duncan MacPhee, who had previously acted for the defender in 1995 but who did not know the deceased at all and had never been his solicitor. When asked to advise on the validity of the letter as a testamentary disposal of the croft, Mr MacPhee expressed considerable doubts on the matter and, conscious of the fact that he did not act for the deceased, declined to draft a will on his behalf when the defender and his wife asked him to do so. He did agree, however, to prepare a letter addressed to the defender confirming his advice, and annexing a general style for a crofter's will which might be shown to the deceased to reassure him that nothing very complex would be involved. That letter was collected by the defender's wife on the day it was written, and despite the terms of Mr MacPhee's advice Christine McCallum at once copied out the style, correcting one error and filling in the blanks, and took it to the deceased for signature. Significantly, the supposed will did not contain any provision to safeguard the future residence on the croft of the deceased's sister Jessie, although according to Christine McCallum the deceased had insisted on such a provision being inserted in the letter some four days earlier. Thereafter, it was said, (apart from delivering the will to Mr MacPhee for safe keeping alongside the earlier letter which he had already retained), the defender and his family concealed the fact that a will in the defender's favour existed until after the death of the deceased some two months later. Reliance was also placed on certain revealing remarks allegedly made by Christine McCallum to individuals on the pursuer's side of the dispute, both before and after the letter and will came into existence. In the whole circumstances, it was maintained, the Court should have no difficulty in concluding that the letter and will were impetrated from the deceased by unfair and improper means; and that the absence of a witness at the material time was deliberately planned to ensure that no-one else had any knowledge of the circumstances in which the deceased signed the two documents. Similarly, it was argued, the subsequent concealment of these events was intended to prevent the matter being raised with the deceased at a time when his ignorance or confusion might have been expected to emerge. [6] In sharp contrast, the defender maintained that the pursuer had failed to prove any of the essential elements of his case. His position, founded largely on the evidence of his wife Therese and daughter Christine, was that both of the documents under challenge properly reflected the deceased's spontaneous wishes at the material time, as did the non-disclosure of their existence to the pursuer and his family during the remaining two months of the deceased's life. The idea of sending a letter to the deceased's landlord, Mr McMillan, had arisen during a conversation between the deceased and Christine on 28 March 1997. This conversation took place in the context of reports by Christine that one of the caravanners, Mr Masson, had approached Mr McMillan in connection with the croft. On hearing this, the deceased indicated that he wished to write to the landlord himself to regulate the succession to the croft, in the same way as he believed his father had done before him. The terms of the letter were a joint effort between the deceased and Christine McCallum on the following day, and after the deceased signed it in Christine's presence she took it to a nearby croft so that Catherine Joan Stewart could also sign it to verify the deceased's signature. Shortly thereafter, on the arrival of the defender and his wife at Tigh-na-Mara, Catherine Joan Stewart excitedly disclosed what had happened and encouraged Christine to show her parents the letter. But for Catherine Joan Stewart's precipitate action, Christine McCallum would have respected the deceased's wishes and would not even have told her parents about the letter in the defender's favour. Christine was then driven in her mother's car to Mr McMillan's house, where she described him as reading the letter and as expressing satisfaction that the deceased had at last done something to resolve the uncertainty regarding the future of the tenancy. Shortly thereafter, prompted by a telephone call from Mr McMillan to the defender at the croft house, suggesting that a solicitor might be contacted to ensure that everything was in order, the letter was taken to Mr MacPhee in Fort William. It was accepted that Mr MacPhee had strongly recommended that the deceased should have independent legal advice, and also that he had refused to prepare a will as such on the deceased's behalf. However, the defender and his family reasonably believed that so long as they did not use Mr MacPhee's letter itself, the whole point of his annexing a style was to enable a will to be prepared without delay if that was what the deceased wanted. Christine McCallum accordingly wrote out the will, number 6/4 of Process, on the basis that it effectively re-stated in proper legal form what the deceased had already sought to provide for in his letter to Mr McMillan. According to her, the will was read over to the deceased; the circumstances in which it had been necessary to prepare it were explained to him; when he noticed that it contained no provision in Jessie's favour, Christine assured him that all was well and that the defender would respect his wishes in that regard; and on receipt of that assurance he signed the will in Christine's presence. Significantly, it was argued, the deceased voluntarily signed two different documents of a testamentary nature some four days apart, and the Court could therefore be all the more confident in concluding that what he had done was of his own free will. The defender was a natural beneficiary in the circumstances, having developed a close personal relationship with the deceased in recent months, and it was important to note that the pursuer was someone who showed much less interest in maintaining and developing the croft and with whom the deceased, latterly at least, did not get on. Christine and her mother immediately took the will to Catherine Joan Stewart in her own house, believing that since she had signed the letter she was also appropriate person to "witness" the will, and after hearing an explanation of the circumstances Catherine Joan Stewart appended her signature below that of the deceased. The executed will was then delivered to Mr MacPhee in Fort William for safe keeping alongside the letter. There was accordingly no question of either document having been concealed by the defender and his family. Both had been shown to Catherine Joan Stewart and to Mr MacPhee, and in addition the letter had been shown to the landlord, Mr MacMillan. With hindsight, it was unfortunate that the pursuer's family were not advised of the deceased's testamentary acts, but this was due to (i) compliance with the deceased's own wish for the matter to be kept secret, no doubt to avoid any family furore in his lifetime, and (ii) to the dismissive and unsympathetic attitude displayed by Mrs Janice MacDonald, the pursuer's daughter-in-law, when the defender's wife tried to broach the subject with her. The whole matter became public knowledge after the deceased died; the anticipated family furore materialised; and the various revealing remarks alleged on the pursuer's side against Christine McCallum were simply never made. From start to finish, it was maintained, all members of the defender's family had sought to act in accordance with the deceased's express wishes, and there was no question of any improper pressure or influence being brought to bear on him at any time. [7] Against that general background of conflict and contradiction, I now turn to consider in greater detail the principal issues which arise for determination in this case, beginning with the pursuer's allegation of specific fraud and thereafter moving on to the issue of facility and circumvention.Fraud
[8] To succeed on this branch of this case, the pursuer must prove one or more specific, identifiable instances of deception or misrepresentation by which the deceased was induced to act in a way in which he would not otherwise have acted. The relevant averments are to be found at pages 18 and 19 of the Closed Record, and the nearest they come to identifying any specific deception or misrepresentation is the assertion of a belief on the pursuer's part that in the circumstances the deceased's subscription of the letter and will was "... obtained by Christine McCallum on a false explanation as to the subject-matter and import of the document (sic)". It may be, as the pursuer avers, that the deceased had had a long-standing antipathy towards making a will. He was certainly in a state of advanced age and terminal ill-health. The will clearly made no provision for either his sister Jessie or his brother the pursuer, and it equally clearly left the tenancy to the defender whose involvement with the deceased was fairly recent and whose multiple sclerosis would have restricted his ability to undertake the physical running of the croft. Nevertheless, in my judgement, these factors fall well short of permitting an inference of specific fraud to be drawn against Christine McCallum, and no direct evidence was led at the proof to demonstrate that, if the deceased was in fact under any error regarding the subject-matter and import of either document, such error was induced by any identifiable deception or misrepresentation on her part. [9] As indicated in paragraphs [32]-[37] below, I have concluded on the balance of probabilities that the purported signatures of the witness Catherine Joan Stewart on the letter and will were not genuine. Nevertheless, I do not think that even this conclusion enables me to hold that the deceased's (genuine) subscriptions were induced by any identifiable act or acts of deception or misrepresentation. In this context, it is relevant to note that the two documents were executed four days apart and in different circumstances. They were not in identical terms, one being an informal letter to the landlord whom the deceased knew, and the other being a formal will bearing to dispose of the croft. In my opinion these further considerations compound the pursuer's difficulties on this branch of the case by raising the question whether distinct and different forms of deception or misrepresentation might have had to be employed in relation to the two different documents.Facility and Circumvention: General Considerations
[10] As I understand it, the parties were in substantial agreement regarding the legal requirements that would have to be met before a will or other document could be reduced on this ground. The term "facility" denotes a materially weakened state of health, either mental or physical, in which a person is abnormally susceptible to external deception, pressure or persuasion to the detriment of his own interests or of the interests of others which he would ordinarily seek to protect. Since, as its name suggests, such a state must simply render a person easily led or imposed upon, it may fall well short of actual mental incapacity. By itself, however, facility is not a ground for the reduction of any deed, but must be accompanied by what the law terms "circumvention" or "fraud and circumvention", denoting such degree of improper deception, pressure or persuasion as may be necessary to induce the facile person to act to the disadvantage or detriment of relevant interests. The existence of such disadvantage or detriment is commonly termed "lesion", and is a further pre-requisite for the reduction of any deed. Importantly, the law regards these key factors of facility, circumvention and lesion as mutually inter-dependent, in the sense that they fall to be considered together and not in separate and distinct compartments. For example, the stronger the evidence of circumvention, the less need there may be for specific proof of facility; and conversely, where there is strong evidence of facility, the more easily the necessary degree of circumvention may be inferred or assumed. Unlike an ordinary allegation of fraud, which must be distinctly and specifically averred and proved, circumvention may be established inferentially and without the need to identify any particular improper act, whether of deception, pressure or persuasion. [11] In my opinion the foregoing propositions are amply vouched by the authorities to which I was referred by counsel on both sides at the conclusion of the proof, notably Clunie v Stirling 1854 17D 15; Gibson's Exor v Anderson 1925 SC 774 (esp. the opinions of Lord Anderson at 778 and Lord Blackburn at 788); Mackay v Campbell 1967 SC HL 53 (esp. the speech of Lord Guest at 61-2); Wheelans v Wheelans 1986 SLT 164; Pascoe-Watson v Brock's Exors 1998 SLT 40; and Grant's Exors v Grant (Lord Reed, unreported, 29 October 1999). [12] It is obvious that every case in this area must turn on an assessment of its own particular facts and circumstances, and to some extent counsel founded on these prior decisions as illustrating the kind of factors which might legitimately assist a Court to reach a conclusion one way or another. As I see it, however, their main value lies in stating and explaining the general principles which I have sought to summarise, and in view of the substantial agreement of parties on this aspect of the case I shall restrict myself to two quotations taken from the opinion of LJC Hope in Clunie, supra, at pages 17 and 18:-"(The issue of facility and circumvention) is intended to embrace any case in which, where a person has become easily imposed upon, or ready to yield his assent, it may be upon a particular subject, whether from old age or actual disease, or the effects of the same on the nerves, leaving an unnatural anxiety and nervousness upon any particular subject, ..., when he has fallen into a helpless situation, another leads him on into a highly disadvantageous bargain, to his own benefit or that of the party for whom he is acting, and who adopts the same. The actual mode or particular acts of circumvention may not be discoverable or easily proved. But the result may demonstrate that the party was really circumvented in the sense of the issue, when he was led into the transaction under challenge; and then the nature of that transaction, the mode in which, and the party by whom it was carried through, and the object apparent on the face of it, for which, if palpably disadvantageous, it was huddled up without proper inquiry, and without the individual receiving the aid he ought to have received, all bear on the jury question, whether the party had been circumvented. Under this issue you cannot separate, as distinct and really distinguishable matters, the state of the man's mind and nerves from the way the transaction was managed. This is peculiarly the case, either in extreme old age, in which, though the mind may be entire, firmness to resist even persuasion, and to feel himself in opposition to those on whom the old man feels himself dependent for comfort in his daily life, may be awanting to such a degree as to make undue influence amount to all the circumvention which in that case is required; ...".
"... it was contended that we must find some positive fact proved which amounts in itself to a distinct act or piece of circumvention; some trick, some particular practising on the mind of the party at a particular time, - some details in short, as to the acts and practices which the general term circumvention includes; and that if one cannot lay one's hand on distinct instances, detected and proved, of particular acts and practices amounting to circumvention, there is no ground for supporting the verdict. If such a view were taken of the question to be investigated ..., I believe nineteen or twenty of the cases in which deeds have been set aside under this issue must have failed. The correct view of the matter is quite different. It is seldom possible to ascertain the particular acts or practices by which either a facile old man, or a person whose power of judging of the fitness or proprietary of entering into particular arrangements as to his affairs has been weakened ..., has been induced to enter into disadvantageous transactions, to his own great prejudice. What passes is commonly with some one party, either the defender or an agent, and is either unknown, or if such party is examined, all practices may be positively denied, which raises a question as to his veracity for the jury. But if the facts satisfy the jury that there was in such party a motive to mislead and induce him to enter into the transaction, either for his own benefit or for the benefit of some one whose interest he was promoting, and that only under persuasion and untrue representations, acting on a mind facile or nervously anxious, from disease, on the subject, could have brought about the result, then it is for the jury to say whether they draw from the whole case the inference of circumvention".
Facility
[14] So far as facility is concerned, in the first place, the evidence might perhaps have been stronger than it was. Neither the deceased's general practitioner nor any other doctor was led as a witness; no witness was adduced from the hospital to which the deceased was admitted in 1997; and only brief references were made to the deceased's medical records when Mary McClelland, one of the district nurses who frequently visited him at the croft, was examined on commission at Fort William during the course of the proof. It was not in dispute, however, that for some years the deceased had been ill and infirm, and that his physical condition deteriorated markedly in and after 1996. By 1997, he was suffering from cancer on top of various other ailments including repeated episodes of debilitating and distressing urinary tract infection; he was noticeably emaciated and weak; he was doubly incontinent; he took to staying longer and longer in his bed each day; and in the words of Catherine Joan Stewart he had "just given up in the last months". Some of the time he would show no interest in watching television or engaging in conversation; he rarely, if ever, left the house; and he would leave correspondence lying. It is not at all uncommon for grave terminal illness to have the effect of depriving a person, to some degree at least, of his ordinary will power and strength of purpose, and in my judgement this has been sufficiently proved vis a vis the deceased in the present case. [15] But the matter does not end there. Over and above the serious debilitating effects of his physical illness, I am satisfied that the deceased was in his latter years vulnerable to pressure or persuasion from third parties in transactions outwith the scope of his normal domestic routine. Acceptable general evidence to this effect was given by Ronald MacDonald, Andrew Wilson, Catherine Joan Stewart, Margaret Masson and Mary McClelland. In addition, while largely anecdotal, there was evidence of the deceased having been duped into paying a travelling salesman far more for a sweater than it was worth, and there was also anecdotal evidence of his having been taken in by rogue traders offering tarmacadam work at the croft for a grossly inflated price. The story was that the deceased was at the stage of being conveyed by car to withdraw thousands of pounds from his bank account at Mallaig before alert individuals intervened on his behalf. Notwithstanding the substantially hearsay nature of these accounts, and the difficulty of attributing them to any particular date, I am inclined to accept them as having some genuine basis in fact. Mrs Masson spoke to her husband having personally intervened on the former occasion, and the accounts themselves appeared to have pretty universal currency within the local community. According to Mary McClelland the deceased seemed to live in a time warp, having lost touch with such things as the modern value of money, and in the context of a build-up of unpaid caravan fees Mrs Masson regarded the deceased as having had a tendency to misjudge people, in the sense of believing that they were honourable when they were not. Over and above that, the social worker Dawn Main Fraser testified to having visited the deceased on 7 May 1997 in order to make an assessment of the extent of his future need for respite care. On that visit she judged him to be generally alert and able to converse, and treated him as capable of taking his own decisions. However, she described her clear impression that he was assenting to things which, according to others, a man of his stubborn independence would not normally have been expected to contemplate, such as inability to cope at home and a willingness to submit to respite care elsewhere. She thought that he might have been trying to tell her what he thought she wanted to hear, perhaps to make her go away, and also confirmed that at the material time he was frail, weak and tired. [16] In the foregoing circumstances I hold it proved, on the balance of probabilities, that in late March/early April 1997 the deceased was to a material degree in a weak and facile state, basing this conclusion on a combination of (i) the physical distress and exhaustion accompanying his severe and terminal illness; and (ii) a distinct liability to be taken advantage of by people with whom he had dealings outwith the scope of his day-to-day domestic routine. It is possible that the deceased also suffered, at least intermittently, from mental confusion and from an apparent lack of awareness of his surroundings. This was suggested in the (hearsay) evidence of the late Katharine A Cameron, the senior district nurse who regularly visited the deceased at the croft, and by the witness Robert Sutherland. However, since almost all the other witnesses, including Ronald MacDonald and Andrew Wilson on the pursuer's side, described the deceased as having remained substantially alert and oriented right up to his death in June 1997, I am not prepared to hold that the pursuer has established this particular aspect of his case. It is in any event unnecessary for me to do so where, in my judgement, the deceased's weak and facile state has been amply proved in other respects.Circumvention
[17] Turning to the issue of circumvention, it does not seem to me that the circumstances in which the disputed letter and will came into existence can be described as remotely normal. On the contrary, they were in important respects so unusual as to give rise - at the very least - to a serious question as to the propriety of what was going on. The principal circumstances which I have in mind in this connection are summarised in paragraphs [18]-[30] below. [18] First, the deceased in his pre-facile days was renowned for his stubborn antipathy towards lawyers, and for his sustained refusal to make a will despite repeated efforts by various individuals to persuade him to do so. These efforts are narrated in paragraph [5] above, and I accept the general evidence led at the proof to that effect. The deceased appeared to believe that on his death the croft would automatically pass to his brother the pursuer, as his nearest male relative, and in the witness box his second cousin John Gladman spoke to the deceased having confirmed his intention to the same effect as late as 1996. I found John Gladman to be a fair and straightforward witness, with no obvious axe to grind, and believed what he said in this connection. This was perhaps one of the factors which underlay the deceased's long-standing determination not to make a will. Mr MacPhee, the Fort William solicitor who gave evidence before me, explained that such an attitude was not altogether uncommon in Highland gentlemen of the old school, and Mr McMillan, the landlord of the croft, gave evidence to a similar effect. Against that background, the fact that the disputed letter and will were executed by the deceased at all represented a dramatic departure from his previous stubborn refusal to do so, and in my view it is not without significance that he took this step within a matter of a few weeks after the defender and his daughter Christine took up residence on the croft. [19] Second, given the deceased's apparent conviction that the tenancy would pass to the pursuer as his nearest male relative, his subscription of the disputed documents in the defender's favour also represented a dramatic departure from what he had previously understood and intended regarding the succession to the croft. In this context, according to Ronald MacDonald, the deceased was conscious that the tenancy of the croft had been in the MacDonald family for several generations, and had in 1974 stated expressly that no McCallum would ever live on that land. However, on the basis of that uncorroborated evidence, I am not prepared to hold it proved that the deceased had a positive aversion towards the defender who was, after all, the son of his late sister Mary and therefore of MacDonald stock to the extent of 50%. It is more likely, in my view, that any remark by the deceased to Ronald MacDonald as long ago as 1974 confirmed his reputed dislike for his brother-in-law Archie McCallum, the defender's father. [20] Third, unlike the letter dated 29 March 1997, the will contained no provision whatever to enable the deceased's sister Jessie to live out the rest of her days on the croft. In my judgement it is highly unlikely that the deceased would consciously have granted any deed in terms which would leave Jessie (and for that matter the pursuer) homeless. It is true that Christine McCallum's uncorroborated evidence was to the effect that the deceased queried the absence of any such provision when the hand-written will was put before him but, even if that were true, it is hard to believe that a man so alert could possibly have been satisfied with the verbal assurance of a twenty-one-year-old niece who was neither the named executor nor the beneficiary under the will. As counsel for the defender conceded at the hearing on evidence, Christine McCallum had no authority to commit her father in this area, since the matter was not apparently the subject of any prior discussion between them. Even if the deceased did not realise that, I find it hard to believe that he would not have insisted on an appropriate provision being written into the will just as Christine McCallum claimed he did in relation to the letter only four days earlier. In my view the deceased's failure in this connection points strongly towards there having been something far wrong with the circumstances in which the will in particular was executed. [21] Fourth, although this matter was not explored in evidence, I regard the letter and will as extraordinary documents in another important respect, namely theirfailure to cover any part of the deceased's estate other than the croft and implements. They did not purport to dispose of the deceased's money, of which he appeared to have a certain amount in a bank in Mallaig, nor his personal possessions, nor any other heritable or moveable property that he might have owned. In the same vein, the will contained no fall-back residuary bequest in the event of the defender (who was obviously suffering from the progressive disease multiple sclerosis) predeceasing him. It is true that, according to Christine McCallum, she was simply following the style appended to Mr MacPhee's letter no. 6/3 of Process, but again it is hard to believe - and in my opinion intrinsically improbable - that if the deceased was truly in control of what was happening he would have signed a will which left him intestate quoad important parts of his estate and, at the same time, risked intestacy with regard to the croft as well.
[22] Fifth, according to Christine McCallum, the text of the will was complete by the time the deceased signed it on the afternoon of 2 April 1997. This meant that it ended with the words "Signed by me at Tigh-Na-Mara (sic), Back of Keppoch, Arisaig on 2 April 1997 before this witness namely Catherine Joan Stewart, Homecarer, 3 Clanranald Place, Arisaig". This was patently incorrect. Apart from Jessie MacDonald, the deceased and Christine were alone in the house at the time, and it is a matter of admission that the supposed witness Catherine Joan Stewart was not there. Christine McCallum further acknowledged in her evidence that she did not then know whether it would even be possible to make contact with Catherine Joan Stewart later that day. Once again I find it hard to believe - and intrinsically improbable - that if the deceased was truly in control of what was going on he would have signed a will which ended with such an obvious inaccuracy on a matter of significance. [23] Sixth, according to Christine McCallum, Catherine Joan Stewart was at the croft on the morning of 29 March 1997 when she arrived to see if the deceased wished to write to Mr McMillan on the subject of the croft. However, she did not mention the matter to Catherine Joan Stewart at that time nor, significantly, did she wait to raise it with her on her next expected visit after lunch. Instead, once the deceased had signed the letter, she described setting off on foot for another croft where, according to her, she knew Catherine Joan Stewart was likely to be at lunchtime. Having duly made contact with her there, she got her to sign the letter before accompanying her back to Tigh-na-Mara. On Christine McCallum's own account, therefore, the practical result was that the appearance of a witnessed document was created without Catherine Joan Stewart being aware of the circumstances in which the deceased subscribed it. Significantly, however, during two separate police interviews in the second half of 1997, Christine McCallum gave a detailed account of Catherine Joan Stewart having signed the letter at Tigh-na-Mara. Although she sought to attribute this material discrepancy to nerves and distress at that time, I regard it as reflecting very badly on Christine McCallum's credibility and reliability in this important area of the case. The alleged "error" was made not once, but twice, in police interviews at different locations some time apart, and is repeated in the defender's pleadings at page 15 of the Closed Record. In cross examination of Catherine Joan Stewart, however, counsel for the defender put a different scenario to her, namely that Christine McCallum had "shouted over" to her at the neighbouring croft from a corner of Tigh-na-Mara - an account which I infer can only have come from Christine McCallum. And the final version involved an acceptance that the two crofts were too far apart to be within earshot, and an account of Christine McCallum walking from one to the other in the hope of finding Catherine Joan Stewart there. Given the apparent importance of the supposed witnessing of the letter after the deceased had already signed it, it is in my view simply not credible that Christine McCallum would not have known exactly where the supposed witness signature was appended, and the fact that three materially different versions have been advanced suggests to me that none of them can be true. For her part, Catherine Joan Stewart vehemently denied signing the letter in the knowledge of what it was, and was also adamant that she had never signed any document for Christine McCallum at the neighbouring croft. [24] Seventh, again on Christine McCallum's account, she and her mother took the will to Catherine Joan Stewart's house for signature on the evening after the deceased had subscribed it. The practical result of this course of action was, for the second time in four days, the appearance of a witnessed document without Catherine Joan Stewart being aware of the circumstances in which the deceased subscribed it. Once again, Catherine Joan Stewart vehemently denied having signed any will in the knowledge of what it was, and was also adamant that she had signed no document at her own home in the presence of Christine and Therese McCallum. In my view it is almost inconceivable that in light of Mr MacPhee's advice a legitimate will would again have been signed in the absence of a witness, and I reject as untrue the evidence of Christine and Therese McCallum regarding their alleged visit to Catherine Joan Stewart's house on the evening of 2 April 1997. Significantly, in her initial police statement given at Milngavie, Christine McCallum made no mention of her mother's presence on that occasion. [25] Eighth, it is, to say the least, unhelpful to the defender's position that Mr McMillan, the landlord of the croft, denied having seen the letter when it was brought to his house on 29 March 1997. It is strange enough that the letter, addressed as it was, was not simply left with him at that time, but even stranger if he is right that he had no opportunity to read it either. If he had seen the letter, he explained, he would have realised whose daughter Christine McCallum was, whereas when she introduced herself he somehow formed the impression that she was the daughter of the pursuer. [26] Ninth, it is also unhelpful to the defender's position that Mr McMillan categorically denied making any telephone call to the croft following Christine's visit with the letter. According to Mr McMillan, it would have been unthinkable for him to make such a call, since he regarded all branches of the family as nuisance and left it to them to instigate any contact or communication. The difficulty here is compounded by a discrepancy between Christine and her mother as to when the relevant phone call was received. According to Christine, the phone call came through on the following morning, whereas her mother explained how her husband had received it on the same evening. [27] On the matters discussed in paragraphs [25] and [26] above, I am inclined to accept Mr McMillan's evidence in preference to that of Christine and Therese McCallum. For one thing, the commissioner before whom Mr McMillan's evidence was taken described him as a Highland gentleman to whom the oath he took was a matter of importance, and regarded him as an impressive witness who gave his evidence in a clear, reliable and impartial manner. Over and above that, however, I am struck by the intrinsic improbability of the competing account which, at best for the defender, involved the letter being taken away again after the visit to Mr McMillan's house, and which also involved the discrepancy as to when the alleged follow-up telephone call was made. Mr McMillan's alleged call was, of course, of some importance on the defender's side of the case, since it was alleged to have been the catalyst for the visit to the solicitor Mr MacPhee at his office in Fort William. [28] Tenth, I am also inclined to accept the evidence of Mr McMillan, supported by Robert Masson, denying the alleged approaches by caravanners which, according to Christine McCallum, provoked the deceased into writing the letter of 29 March 1997 in the first place. In my view the allegation of such approaches was in any event improbable; their precise nature was never made clear; and if the deceased was truly in control of what was going on it is hard to believe that he would not have reacted by checking the truth of the allegation, rather than by writing a purported testamentary letter to his landlord. [29] Eleventh, from the moment the letter came into existence on 29 March 1997, it is clear that Christine McCallum's parents (the defender and his wife) took on an active and central role in seeking to secure an effective testamentary disposal of the croft in the defender's favour. Therese McCallum took her daughter to Mr McMillan's house; the defender took the alleged call from Mr McMillan suggesting that a solicitor should be involved; the defender and his wife took the letter to Mr MacPhee in Fort William and persuaded him (against his better judgement, I suspect) to write a letter appending a general style for the testamentary disposal of a croft; and Therese McCallum collected that letter on the morning of 2 April 1997, bringing it to her daughter Christine at Tigh-na-Mara. Extraordinarily, however, neither the defender nor his wife ever went to see the deceased after hearing of the letter in the defender's favour; no attempt was made by the defender to thank the deceased for his generous act even though, according to Christine McCallum, the deceased knew that the family were aware of what he had done; on 2 April 1997 the deceased and his wife appear to have left the scene altogether, leaving Christine alone to write out the will and get the deceased to sign it; and thereafter the defender and his wife gave no hint to anyone else that, to their certain knowledge, testamentary writings had been executed by the deceased in the defender's favour. Indeed, the defender pretended to Mr MacPhee, after the deceased's funeral in June 1997, that he was unaware whether or not Catherine Joan Stewart had been present as a witness when the will was signed, whereas he must have been aware from the outset that this was not the case. Moreover, in a conversation with her sister-in-law Janice MacDonald while the deceased was still alive regarding the possible succession to the croft, Therese McCallum said nothing of what she knew and instead made a jocular remark about how a long-lost son might emerge from France to claim the inheritance. Accepting the evidence of Mr MacPhee and Mrs MacDonald on these matters, I regard all of these actings on the part of the defender and his wife as highly suspicious, and as serving to strengthen my clear impression that there was something far wrong with the circumstances in which the letter and will came into existence. [30] Twelfth, it remains a mystery why the defender and his family, who knew that the deceased's condition was deteriorating fast on account of advancing age and terminal ill-health, failed to take the steps which might have been expected if the deceased had spontaneously voiced a genuine intention to leave the croft to the defender on his death. In particular, no effort was made to contact the deceased's solicitor, if he had one. No effort was made to obtain independent legal advice for the deceased from any source regarding the making of a will. No effort was made to involve any other professional person who knew the deceased - for example his general practitioner, or one of the district nurses, or the local priest - in order to verify that he was in a fit condition to attend to the testamentary disposal of his estate, and was also genuinely desirous of doing so. On the contrary, the defender and his wife went to Mr MacPhee, a solicitor who had recently acted for the defender but who did not know the deceased at all. They and their daughter Christine then ignored Mr MacPhee's strong reservations about preparing a will without being in a position to take proper instruction from the deceased himself. Once the letter no. 6/3 of Process was obtained from Mr MacPhee with a style annexed, Christine McCallum immediately used it in a manner which Mr MacPhee clearly did not contemplate, namely by copying it out, virtually word for word, and getting the deceased to sign it. This stage in the exercise appears to have been carried through in such a hurry that Christine McCallum (i) copied out the clause appointing an executor when, according to her, she did not know what that meant, and (ii) copied out the testing clause without attempting to ascertain whether or not Catherine Joan Stewart would be able or willing to sign as a witness on that date. [31] In my opinion the foregoing considerations are simply too numerous, and too significant, to enable me to avoid the inference that the deceased, in his weak and facile state, executed both the letter and the will as a result of improper deception, pressure or persuasion that he was unable to resist. Some of the factors which I have listed would by themselves be sufficient to warrant the inference in question, but in my judgement the overall picture makes it impossible to regard the letter and will as representing the spontaneous and genuine testamentary intentions of the deceased. I therefore hold, with little hesitation, that these documents were impetrated from the deceased by circumvention when he was in a weak and facile state, and that while the principal actor in this regard was Christine McCallum the defender and his wife Therese were both directly involved as well. As I see it, this is a case in which the evidence of facility is so strong that circumvention may readily be inferred or assumed. However, I also consider that this is a case in which the evidence suggestive of improper and underhand activity is so compelling that, if necessary, the requisite degree of facility could equally be inferred or assumed. On the whole matter, I am satisfied that the pursuer's case of facility and circumvention has been amply proved, and accordingly that both the letter of 29 March 1997 and the will of 2 April 1997 now fall to be reduced.Forgery
[32] That is sufficient for the determination of this action, but I now come on to consider the additional question whether, as maintained by the pursuer, the signature of Catherine Joan Stewart was in fact forged on one or both of the documents in question. In her evidence, Christine McCallum insisted that both signatures were genuine, and as regards the will she was supported by her mother who also spoke to having been present when the deed was signed by Catherine Joan Stewart in her own house. As against that, there was the evidence of Catherine Joan Stewart herself, and also of the handwriting expert Mr McLean who expressed the strong opinion that both signatures were forgeries. Obviously, if these signatures were forged, this would add further weight to the conclusion of facility and circumvention that I have already reached on other grounds. It was of course agreed between the parties that, by virtue of sections 2 and 3 of the Requirements of Writing (Scotland) Act 1995, forgery of a witness signature would not affect the formal validity of any testamentary document provided that the authenticity of the granter's subscription could still be established. [33] The issue of forgery is not as easy to resolve as might have been supposed. Mr McLean's evidence was very clear, and very definite, to the effect that neither signature was genuine. His conclusion was based on a series of comparisons between the challenged signatures and various specimens provided by Catherine Joan Stewart in the context of the present dispute. According to Mr McLean, there were four particular features of the disputed signatures which led him to his conclusion. First, there were just too many discrepancies in the letter forms, by comparison with Catherine Joan Stewart's normal signature. Secondly, there were repeated indications of slow, heavy and deliberate writing, which were incompatible with a genuine spontaneous signature. When examined with the aid of a magnifying glass, lines began and ended bluntly, and the "tailing off" characteristic of fluent writing was almost entirely absent. Thirdly, an overlay of the two disputed signatures demonstrated what Mr McLean regarded as unusual and excessive correlation in the exact positioning of particular letters. And fourthly, the initials on both signatures were strangely over-written in the absence of any indication of pen failure on the first attempt. Taking all these factors together, Mr McLean was convinced that the disputed signatures were not genuine, and was not deflected from that conclusion by (i) the fact that at some point in the past, and on a basis which was never explained at the proof, someone from Grampian Police had reached a contrary view; or (ii) evidence of the variability of Catherine Joan Stewart's handwriting and signature. [34] Although Mr McLean was clearly a well-qualified and experienced expert in such matters, and gave his evidence in a careful and impressive manner, his conclusion would in my view have been much more compelling if Catherine Joan Stewart had categorically denied that the two signatures were hers. However, she repeatedly - and somewhat curiously - declined to do so in the course of her evidence despite maintaining that she had never seen the disputed documents before, and that she had certainly not signed either of them in the circumstances alleged on behalf of the defender. Each of the witness signatures, she accepted, "looked like hers" and "could be hers", and I thought that she became somewhat flushed and agitated in the witness box (i) when it was put to her that she had in fact signed both documents, particularly the will; and (ii) when her account of having been in Skye on 2 April 1997, and therefore not available to sign any document on that date, was tested and ultimately found to be in error. The nearest she came to denying authorship was when she agreed that, space permitting, her normal signature would probably have been the fuller "Catherine Joan Stewart", like all of the specimens which she provided for Mr McLean, and that she might not have signed either of the disputed deeds. Throughout her evidence she maintained that she had only ever signed one document at Christine McCallum's request, having been given the impression that this was something to do with the day-to-day running of the croft by the defender. [35] I have to say that during the course of her evidence Catherine Joan Stewart's position on these matters caused me considerable concern. It must be rare for a person to be genuinely unable to confirm whether or not their own apparent signatures on important documents have or have not been forged, and in light of the strong opinion expressed by Mr McLean Catherine Joan Stewart's evidence came as something of a surprise. At the time, I wondered if the explanation might be that she had in fact incautiously signed one or both of the disputed documents as a witness, and had then sought to deny it once the family row broke out following the death of the deceased. Clearly, if Catherine Joan Stewart had actually signed either document, that would invalidate Mr McLean's opinion evidence which depended on both signatures being forgeries. [36] However, having now heard all of the evidence, including that of Christine and Therese McCallum, I have reached the conclusion that, on the balance of probabilities, the witness signatures on the two disputed documents were indeed forged as Mr McLean maintained. Other than Mr McLean's opinion evidence, to which I am prepared to attach significant weight, there are a number of grounds for this. First, for the reasons given in inter alia paragraph [23] above, I reject the evidence of Christine McCallum regarding the alleged location and circumstances in which, according to her, Catherine Joan Stewart signed the letter on 29 March 1997. Correspondingly, I accept Catherine Joan Stewart's vehement denial on these matters. Second, I reject the evidence of Christine and Therese McCallum regarding the alleged behaviour of Catherine Joan Stewart in excitedly disclosing the import of the letter when the defender and his wife arrived at the croft on 29 March 1997. Again Catherine Joan Stewart vehemently denied these allegations, and I accept her denials in that regard. Had the allegations been true, I do not believe that Catherine Joan Stewart would have been able to keep the matter secret from everyone, including the deceased, over the remaining two months of the deceased's lifetime. Nor do I believe that she would have reacted as she did when confronted with her apparent signature on the will shortly after the deceased's funeral. According to Mrs Janice MacDonald, Catherine Joan Stewart at that stage responded by saying that, although she had signed one document at Christine McCallum's request, she did not know that it was a will and would not have signed it if she had. Third, for the reasons given in inter alia paragraph [24] above, I reject the evidence of Christine and Therese McCallum regarding the alleged location and circumstances in which, according to them, Catherine Joan Stewart signed the will on 2 April 1997. Correspondingly, I accept Catherine Joan Stewart's vehement denial on these matters. Fourth, I believed Catherine Joan Stewart when she said in evidence that if she had agreed to sign the disputed documents she would probably have used her normal signature "Catherine Joan Stewart", and not the abbreviated signature "C J Stewart" which she tended to use only where space was limited. Fifth, I believed Catherine Joan Stewart when she explained in evidence that she did in fact sign one document at Christine McCallum's request just as she was leaving Tigh-na-Mara one afternoon, and that there was no question of her pen failing on that occasion. According to her, she was told that this was a paper concerning the running of the croft by the defender, and assumed that this must refer to day-to-day activities while the deceased was still alive. She then signed the paper on the bonnet of her car outside the croft house. Astonishingly, however, she gave no though at all as to why she was being asked to sign such a document, which can have had nothing to do with her. Equally astonishingly, she signed it when it was folded over in such a way that she could not see what it said. Sign it she did, however, and in my opinion this incautious act provides what I regard as a tenable explanation for her apparently strange unwillingness, in the witness box, to confirm that neither of her alleged signatures on the disputed documents was genuine. She had clearly signed one document, the nature of which was completely unknown to her at the time, and in these circumstances, as it seems to me, she was not prepared to risk denying, on oath, the authorship of any signature which could conceivably have been hers. As she explained in the witness box, her handwriting was far from consistent, and of course signing any document on the bonnet of a car was liable to be an awkward exercise. Catherine Joan Stewart's caution in this respect may have been - and in my view probably was -unreasonable, given the multiple indications of forgery identified by Mr McLean, but having weighed up all of the relevant evidence I am, on balance, satisfied that this is the most likely explanation for the apparent evidential difficulties discussed in paragraphs [34] and [35] above. [37] Taking all of these considerations into account I conclude, on the balance of probabilities, that the apparent signature of Catherine Joan Stewart was not genuine on either the letter of 29 March 1997 or the will of 2 April 1997. In reaching this conclusion, I prefer the strong evidence of Mr McLean, and that of CatherineJoan Stewart, to the contrary evidence of Christine and Therese McCallum. Conversely, I reject as untrue the evidence of Christine and Therese McCallum to the effect that Catherine Joan Stewart did sign the disputed documents in their presence. In my opinion, this aspect of the matter further confirms that something was far wrong with the circumstances in which the disputed letter and will came into existence, and strengthens the conclusion which I have already reached, on other grounds, that the letter and will were both impetrated from the deceased by circumvention when he was in a weak and facile state.
Alleged Revealing Remarks By Christine McCallum
[38] I now turn to consider the sharp evidential conflicts which arose during the proof regarding certain remarks which Christine McCallum was alleged to have made both before and after the disputed letter and will came into existence. Once again, in view of the conclusion which I have already reached on other grounds, these issues do not strictly need to be resolved, but for completeness it is appropriate that I should briefly indicate my views on them at this stage. Four such remarks were alleged in evidence by various witnesses led on the pursuer's behalf. The first appeared to pre-date the disputed documents, and was allegedly made to Andrew Wilson, in his car on a journey between Glasgow and Arisaig, along the lines that "... it would kill my Dad (the defender) if he does not get the croft", and that she would do anything for her father. The second came at a later date, after the existence of the will became known, and was allegedly made to Janice MacDonald along the lines that ".... you would have done the same thing if it had been your father". The third remark was allegedly made to Robert Sutherland in about March 1997, to the effect that "....Dad is getting the croft .....; when we get it we will be looking for a site supervisor, and the job is yours if you want it". And the fourth was again allegedly made to Robert Sutherland at about the beginning of April 1997 along the lines that "... I've/we've got the croft...; John signed a will this morning; my Dad's got the croft", followed by some reference to the croft going ".... 50/50 to me and my Dad". [39] On the evidence before me, I am not prepared to hold it proved that any of these alleged remarks were made by Christine McCallum to the relevant third parties. So far as the first is concerned, I acknowledge that the comment might have been made, and wish to make it clear that I formed no adverse view of Andrew Wilson as a witness. However as indicated in paragraph [4] above, this was a proof in which clear distinctions were not always drawn between what witnesses could say from their own knowledge and what they might have heard or understood from other people. In the present context, for example, I found it significant that, according to Janice MacDonald, virtually the same thing was said by Therese McCallum to her on an entirely different occasion. Overall, this matter was left in such a state of uncertainty on the pursuer's side that I am not prepared to prefer the evidence of either of the pursuer's witnesses to that of Christine McCallum who denied making the comment to anyone. The question why an intelligent person determined at all costs to obtain a testamentary disposal of the croft in her father's favour should deliberately attract attention in the manner alleged was never explored during the proof. In any event, if I had held that the comment was made, I would have regarded it as tending to support Christine McCallum's openness on the matter of the inheritance of the croft, and as tending to weaken any impression that the letter and will were obtained from the deceased in a secretive and underhand manner. [40] On similar grounds, I decline to hold it proved that the second remark attributed to Christine McCallum was made as alleged. Ronald MacDonald's clear evidence was of his wife having told him that the remark was made by Christine McCallum during the course of a telephone conversation, whereas Janice MacDonald herself claimed that the remark was made in a caravan on the croft site in the presence of the defender and others. No means of reconciling these two conflicting accounts was suggested in evidence, and I did not understand the pursuer's counsel to suggest that the same thing was said by Christine McCallum twice over. In these circumstances, I do not regard the quality of the evidence as sufficient to prove that the alleged remark was made on either occasion. Again, it seems intrinsically unlikely that Christine McCallum would have made any such remark if, as I have held, the deceased had been induced to subscribe the letter and will by improper means. [41] Turning to the third and fourth of the remarks attributed to Christine McCallum, I am not prepared to hold them proved on the uncorroborated testimony of Robert Sutherland. Robert Sutherland was a loquacious and, at times, argumentative witness whose loyalties obviously lay with the pursuer's side of the family dispute. He was very close to the pursuer at the material time, working regularly on his boat, and throughout his evidence I had the impression that he was rather more concerned than he should have been about the effect that his testimony was having on the court. Moreover, his evidence was liable to change from time to time without adequate explanation. For example, he began by confidently asserting that the fourth alleged remark was made to him by Christine McCallum one afternoon just after he had come off the pursuer's boat. On the following morning of the proof, however, he made something of a meal of departing from that account, and was ultimately unable to say where he had come from or what he had been doing on the relevant occasion. On the same morning, he volunteered for no apparent reason that he and Christine McCallum were lovers in the spring of 1997. At the time, I wondered why he had volunteered this very personal information which could have no direct bearing on the central issues in the case. It then appeared that the closeness of the relationship, which Christine McCallum and her mother hotly denied, was the supposed justification for Robert Sutherland allegedly being the recipient of spontaneous disclosures of the very details which Christine McCallum and her parents were otherwise at pains to conceal. I was not impressed with Mr Sutherland's evidence on these matters, and decline to accept it. As before, it is hard to see why Christine McCallum should have openly alerted the pursuer's close associate to the defender's interest in the succession to the croft. It is even harder to understand why, if his evidence was true, Robert Sutherland on his own account never mentioned the matter to the pursuer or to anyone else. [42] I should add that, for similar reasons, I am not prepared to accept Robert Sutherland's uncorroborated evidence as to how, in more recent times, Christine McCallum allegedly lost her temper with him in a Glasgow pub and ended up shouting and swearing abusively about the pursuer and his family. Even if I had taken a different view, I would have regarded this alleged flare-up as too peripheral to have any effect on my conclusions on the central issues arising in this case. In the same context, Robert Sutherland gave evidence (which Christine McCallum broadly accepted) of an earlier incident in which she lost her temper with an older man in a bar and ended up breaking his nose. I fail to see the relevance of this collateral incident to the present case, where Christine McCallum's temper is not in issue, and gain no assistance from it in connection with who said what to whom in the Glasgow pub some years later. [43] For the avoidance of doubt, however, I should make it clear that my unwillingness to accept the evidence of the pursuer's witnesses on the matters discussed in paragraphs [38]-[42] above does not alter my view that, on the central issues in this case, Christine McCallum was neither a credible nor a reliable witness. Much of her evidence was delivered in a sing-song manner giving the impression of rehearsal rather than spontaneity, and at the time I did not think that her previous illness and medication could plausibly explain her unusual demeanour in the witness box. However, as already discussed earlier in this opinion, the main problems affecting Christine McCallum's evidence were (i) its inconsistent and variable content; and (ii) the fact that it was contradicted by much of the other evidence in the case.Conclusion
[44] On the whole matter, I shall (i) sustain the third and fourth pleas-in-law for the pursuer, at the same time repelling his first and second pleas; (ii) repel the pleas-in-law for the defender; and (iii) grant decree of reduction in terms of the first and second conclusions of the Summons.