Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 34
A340/06	OPINION OF LORD McEWAN in the cause MOHAMMED RAFIQUE AND OTHERS Pursuers; against MOHAMMED ASHRAF AND OTHERS Defenders: ________________

Pursuers: Kinnear: Drummond Miller LLP

Defenders: Stuart: Lindsays, WS (Third Defender)

5 March 2013

[1] In the case before me the testator first married the third defender by whom he had four children (the fourth to seventh defenders). Having left her he then married the second pursuer, a much younger woman, in Pakistan. By her he had two children. He died there in 2005. It is averred that he made a will in 2003 in Glasgow (the "Scottish will"). That document mainly favours the younger family. It is also alleged that he made a will in 2005 in Pakistan (the "foreign will"). That will favours all the family. There is estate in Scotland and abroad.

[2] There is even mention of a third will and of proceedings which may be ongoing in Pakistan. I will deal separately with that. Evidence on Commission was taken in December 2010 to lie "in retentis". There had been considerable procedure before the case was heard by me and I now briefly summarise that under reference to what I have already written in my opinion of 2 October 2012. Only the defenders are legally aided. The Record closed in January 2008 after some 18 months of procedure. The case was on the Procedure Roll and then a proof was fixed for February 2010. That was discharged and re-fixed for May 2011. Shortly before that diet the third defender lodged a Minute of Amendment introducing a wholly new case. There are lengthy averments of fraud and forgery. A month before it the Lord Ordinary discharged the proof and thereafter a Procedure Roll debate was heard by me in June 2012 over three days. At the end of that, the defenders again sought to amend and I heard parties on that in August, later refusing the motion to amend.

[3] In January 2013 the original Procedure Roll discussion of June last year was concluded and I now turn to consider that.

[4] The action itself can be simply described. It seeks, at the instance of the executor (a nephew of the deceased) and the younger widow, production and reduction of the foreign will of 2005. It is alleged, inter alia, that it is a forgery and it is proposed that this will be proved by a handwriting expert and other documents. The older widow and her family challenge the reduction and attack the validity of the Scottish will. They say that the person who signed it was not the testator but an imposter. They also rely on a number of unusual surrounding circumstances.

Pursuers' argument

[5] In opening the debate for the pursuers Mr Kinnear pointed to the fact that he had lodged a Note of Argument but the defenders had not. I refer to his Note which he followed and relied on. I do not need to repeat it but will simply set out how he developed it. Counsel, in the end, sought to have excluded as irrelevant three large areas of the Record, but accepted that there would require to be a limited proof on some of the facts.

[6] It was not necessary to have any investigation into domicile. It did not matter where the testator was domiciled and even the foreign will claimed he was domiciled in Scotland. The Scottish will was challenged apparently for many reasons but no reduction of it has been sought and there is no plea that it should be set aside "ope exceptionis". The will proves itself and he referred me to the Wills Act 1963 section 1 and the Requirements of Writing (Scotland) Act, 1995. The Scottish will could not be attacked unless some proper attempt was made to reduce it.

[7] In the course of both debates a number of authorities were listed and placed before the Court. A few of these were canvassed at length, some referred to in part and others not at all. For convenience I set them all out here and I will later refer to them in a shorthand fashion, viz: Inglis v National Bank of Scotland 1909 SC 1038; Ellon Castle Estates v McDonald 1975 SLT (notes) 66; Foxley v Dunn 1978 SLT (notes) 35; Nunn v Nunn 1997 SLT 182; Donald v Donald 1913 SC 274; Reddington v Riach's Exec 2002 SLT 537; Doherty v Norwich Union Fire Insurance Soc 1974 SC 213; Vaughan Engineering v Hinkins & Frewin 2003 SLT 428; Black & Campbell v Cameron Ltd (1938) 54 Sh. Ct. Rep 169; Ferrie v Ferrie's Trs (1863) 1 M 291; McLaren v Menzies (1876) 3 R 1151; McBeath's Trs v McBeath 1935 SC 471.

[8] The following text books were also looked at: McLaren: Court of Session Practice; Halliday: Conveyancing Law & Practice; Macphail: Sheriff Court Practice; Stair Society Encyclopaedia, articles on Civil Procedure and Evidence; Walker and Walker: Law of Evidence; Maxwell: The Practice of the Court of Session; Macfadyen: Court of Session Practice.

[9] Rules of Court 28.1 and 53.8 were also looked at.

[10] Of his own cases Mr Kinnear began with Ellon Castle where there was no proper line of defence and the very lengthy averments were not supported by any plea-in-law. It was necessary to put in a plea which would allow a distinct decision on a legal proposition arising out of the facts. Foxley concerned the sale of cars and the defence was a denial of the whole transactions followed by an allegation that the sum sued for was excessive. That was not a relevant defence. Nunn was an action of reduction of an undefended decree of divorce. The case was complicated for a number of reasons but it was found that the averments on the issue were separate and inconsistent and also were not alternatives. They were also described by the Lord Ordinary as vague, equivocal and unclear. Donald said Mr Kinnear was a clear case, was binding and was decisive in his favour. The need for reduction was obvious.

[11] Mr Kinnear concluded by inviting me to exclude certain lengthy passages from the proof which he identified and I refer to later.

[12] In his later reply Mr Kinnear repeated what he had said earlier in the first debate. As the defenders had not lodged a note of argument their preliminary plea should be repelled and proof at large ordered. The only purpose of a proof before answer was to answer a question of legal difficulty. Here there was none. The foreign will was either a forgery or it was genuine. That depended on expert and parole evidence. Any surrounding circumstances to the foreign will could affect its interpretation but not its validity and domicile did not affect its validity. A will was valid according to its place of execution or the domicile of the testator or both.

[13] The actions in Pakistan were not raising or disputing the same point and what was said about these wholly lacked specification. In any case there could not be an action in Pakistan contending for intestacy as against a position in this case relying on the foreign will. The two attitudes were wholly inconsistent.

[14] The defenders had been refused leave to amend. There could not be a finding (as they contended for) of a "probable invalidity" without a proper plea. Such a finding would not affect the status of the Scottish will. In Donald a proper plea was stated and there was compelling authority for saying that in cases like this, an action of reduction was needed where all parties could be called. Without a proper plea the averments were simply irrelevant.

[15] The case of Docherty was not in point as it concerned a decree with no other parties involved. Vaughan was the same. There was no wider ambit. The other three cases in the Supplementary list were different types of actions.

Defenders' argument

[16] Mr Stuart moved me to allow a proof before answer and any objection to the various passages which Mr Kinnear had sought to be excluded could be dealt with under reservation. A proof before answer had been offered.

[17] The defenders were entitled to contradict the pursuers' allegation that the deceased was domiciled in Scotland. Whatever was seen as a declaration in a will could be contradicted by evidence. He referred me to Reddington. Counsel then referred to the four actions in Pakistan. These simply go to the point of whether these proceedings were properly raised in the name of this pursuer. In any case it would not lead to any inquiry since documents had been lodged even though there were communications problems with Pakistan. The averments about the hospital and the estate in Pakistan were all relevant to domicile.

[18] The pursuers sought to establish the validity of the Scottish will. The handwriting on both wills was to be looked at. The defenders were entitled to attack the factual basis of any opinion. There was no need to reduce the Scottish will because if the foreign will was valid then the earlier one fell. What the defenders were doing amounted to a challenge by exception without any plea.

[19] After the failure to amend, at the resumed diet Mr Stuart finished his argument in this way. He began by repeating that none of his averments should be excluded. There were two issues; were the averments relevant and if so how should the challenge be dealt with. There was a discretion to allow the challenge in this action without requiring an action of reduction. It may require a preliminary proof.

[20] Under the Requirements of Writing (Scotland) Act 1995, a signature was enough to allow validity. That was only a presumption which could be rebutted. It was for the pursuer to prove the testator had signed. The defenders did not have to raise an action of reduction. It was enough for the defenders to achieve "a finding" that the Scottish will was probably not valid. The case of Donald concerned only the use of exception in the Sheriff Court. It was not authority for the proposition that a document presumed valid cannot be set aside ope exceptionis. There was a greater discretion in the Court of Session. He referred to Docherty at pages 218 and 220 and Vaughan pages 34 and 35.

[21] The averments made set out a relevant case to challenge the will. They referred to its execution; its contents; his intentions; the conduct of the first pursuer and reliance on other forgeries. There was a discretion to be exercised under Rule of Court 53.8.

[22] The Court should not demand an action of reduction to be raised. It would lead to a multiplicity of actions, common evidence and a sist of the present litigation. There would be delay, expense and inconvenience. The wills were linked and it was possible that both might fail. If the Scottish will was reduced that would not be res judicata on parties not called.

[23] On two points of detail the averments about what the testator said were sufficiently specific. The conduct of the executor went beyond an issue of credibility. Counsel did not refer to the three cases all contained in his supplementary list of authorities.

Decision
[24] What about domicile. It was said that a statement in the will about domicile was not conclusive. I agree with that and if authority is needed Reddington is sufficient. Although it is an Outer House case, it proceeds from a very strong judge. However, this case is not about domicile and neither party has any plea directed to it. In my opinion his domicile is simply not relevant to the real issue.

[25] I should say something about the allegations of other proceedings in Pakistan and the existence of a third will dated 13 August 2003.

[26] Let me deal briefly with the will. It is not produced. It is said to be a false document but no clear averments are made why this is so or who falsely created it, when or where. In my view the averments about this are irrelevant for want of any proper specification.

[27] Proceedings in Pakistan, as averred on both sides, are complicated. They may affect jurisdiction but the defenders' first plea-in-law has already been repelled (19 March 2008). Read fairly, what I think the pursuer is saying is that he has an action abroad to cancel the 2005 foreign will. That is consistent with the conclusion in the present action. The other Court proceedings (involving Mr Baloch) seem to me to be administrative only.

[28] However, the averments of the third defender about proceedings in Pakistan at first instance, then on appeal seem to be about her contending for intestacy (according to the pursuer's page 9) but without any clear admission by the defenders on page 11. It should be within her knowledge what her foreign action is about and I am critical of a failure to state the position. If the pursuer is correct then contending for intestacy contradicts the defence in this case that the 2005 will rules. In any event the attempt to seek intestacy appears to have failed. The defender goes on (pages 12/13) to aver a number of other actions and mentions "... a 2003 Will of the deceased ...". It is not clear if this is the Scottish will. None of these averments are focussed by any plea-in-law and, even if proved, cannot affect the matters in the action before me.

[29] I agree with counsel for the pursuers about the cases cited in the defenders' supplementary list. Mr Stuart did not canvass them. Ferrie was an action of reduction. The grantor of the deed was paralysed and the question was whether it had been properly notarially executed. Unfortunately one solicitor who did so had double capacity and one was disqualified for other reasons. McLaren was a Petition concerning the informality of execution of a deed by a lady who had died abroad. Its only importance is that proof of the surrounding circumstances of the signature was allowed. The proof of what took place in Madeira was undefended and taken on commission (1153). McBeath was a special case and although it was contested the issue was what was "holograph". The facts about the deceased and his health were, of course, agreed.

[30] In my opinion none of these cases is in point and indeed in Ferrie there is a strong passage in the opinion of Lord Curriehill (298) supportive of probative deeds.

[31] In Doherty, the pursuer's husband had been killed in a road accident. Having got decree in absence against the other driver who did not pay she sued his insurers. They had not entered the process due to default by one of their employees; but now sought to reduce the decree ope exceptionis on the grounds that the sum sued for was excessive. The Lord Ordinary allowed proof before answer. It should be observed that the only parties affected were the widow and the insurers. There was no wider ambit. Vaughan was again an Outer House decision. There the plea was stated only as an alternative to a judicial review of an adjudicator's decision. The Lord Ordinary's comments (paras 34/5) on the plea are obiter and they appear to limit the effect of Donald. He does recognise the problems that can arise if others (here the adjudicator) beyond the original parties are to be affected.

[32] Moving on from these two cases I now look at Donald.

[33] The case began in the Sheriff Court at Dumbarton. A relative of a deceased petitioned to have himself made infeft of two heritable properties to which he only had a personal right. The petition was opposed by another relative who was the executor nominate under the will of the deceased, was confirmed as executor dative and was in possession of the estate. The petitioner responded by alleging that the will founded on had been impetrated from the deceased while he was weak and facile by fraud and circumvention. The petitioner pleaded inter alia that the will should be reduced and set aside ope exceptionis. The objector pleaded that such was incompetent.

[34] It was held that the will being the very foundation of the defence could not be set aside in this way and that an action of reduction was necessary. It should be commented further. In Donald there was a plea of ope exceptionis. Here there is none. The Lord Justice-Clerk held that such a plea was never intended to look into matters like facility and circumvention which would amount to a "... process inside a process ..." (278). (In the present case before me the issue raised is one of fraud and forgery.) On the same page it was said that the plea was meant to simplify procedure and to be used where it would be final between the parties (see also Lord Salvesen 280/1). That cannot be said with any confidence in this case where other interests could be involved eg creditors of the estate; in spite of the many parties called. I do not have to decide that point. In my opinion this case is authority for saying that only an action of reduction can now invalidate the Scottish will.

[35] A small point was made about averments on pages 31C and 19E about a conversation between the deceased and his first wife. In my view these are wholly inspecific as to time and place.

[36] I now deal with the disposal of the case about which there was some discussion. It has to be viewed against the fact that there is no plea of ope exceptionis and the defenders have not argued their relevancy plea. I have held that significant areas of the defences are not relevantly averred. Mr Stuart was driven to say that if he was allowed proof before answer on all these matters the Court "could make a finding that the Scottish will was probably not signed by the testator" (as he put it). That in my opinion is unsatisfactory. It would not overcome the Statutory presumption in favour of the will under the Wills Act 1963. The will would remain valid. Proof before answer is only appropriate where there is a proper plea to support the defender's legal conclusion on the facts. (See McLaren 552 and Maxwell 263/4). Here there is none, and I have earlier refused at a late stage one to be added by amendment. To allow proof before answer in view of what has occurred would in my view contradict the spirit of Rule of Court 28.1(3).

[37] It is accepted that the pursuers will have to have a proof of what is averred but in view of the opinion I have formed about the defences I have to refuse proof of certain averments following what was done in Inglis. The excluded parts are as follows, viz. In the Record of June 2012 Answer 1 page 12 from and including the words "She is ..." on line 6 to and including the words "... such evidence" on page 13 line 9. In Answer 2 page 15 from and including the words "Explained and ..." in line 10 of that Answer to the end of that Answer. The whole of Answer 3 except the first three lines on page 18. Since it is the same averment as at 19E I will also exclude on page 31 the sentence "The deceased had told the third defender that the house at 4 Fauldswood Drive, Paisley was to be hers".

[38] Accordingly I will allow a proof at large excepting therefrom the averments just mentioned. I will also now repel the defender's second plea-in-law for want of insistence. I reserve all question of expenses meantime.