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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2023] CSIH 38
P642/23
Lord Malcolm
Lord Doherty
Lord Tyre
OPINION OF THE COURT
delivered by LORD TYRE
in the Petition
of
JAMES COBB AND ANDREW GEMMELL
Petitioners
for
Directions in respect of the estate of the late Robert Pollock Crawford
Petitioners: L McCabe (sol adv); Anderson Strathern LLP
3 November 2023
Introduction
[1]
Robert Pollock Crawford (the deceased) died on 19 April 2021. He left a will dated
10 November 2020 appointing the petitioners as his executors. The first petitioner was a
friend of the deceased; the second petitioner is his nephew. The will was drafted by the
deceased's former solicitor who had recently ceased to practise. It contains various specific
and pecuniary legacies and provides for the residue of the deceased's estate to be divided
(subject to certain conditions) equally among a health board and two charities. The will was
2
witnessed by a witness whose name and address appear in the will. It was not signed on the
first page, but by interlocutor dated 13 August 2021 the will was certified by the sheriff at
Ayr, in terms of section 4(1) of the Requirements of Writing (Scotland) Act 1995, as having
been subscribed by the deceased. At that time it was believed by the petitioners that the will
was the last testamentary writing of the deceased. The value of the estate is substantial.
[2]
A second will was subsequently delivered by post to the second petitioner on
5 November 2021 and to the petitioners' solicitors in Stewarton on 6 November 2021 (the
document delivered to the solicitors being believed to be the principal). The petitioners do
not know who arranged for these documents to be so delivered.
[3]
The second will is dated 10 January 2021. It was not drafted by the deceased's
former solicitor (nor, it would seem, by any other solicitor). It consists of a single page and
bears to be signed by the deceased. There is a witness signature but it is illegible and there
are no details to identify the witness. The second will appoints the deceased's daughter,
Alison Stanley, and the second petitioner as his executors. It contains a number of pecuniary
legacies, mostly different from those in the first will, and provides for the residue of the
estate to be made over to Alison Stanley. It revokes all previous wills and testamentary
writings. No steps have as yet been taken by any person under section 4 of the 1995 Act to
set it up as the deceased's last will.
[4]
The terms of the second will, and the circumstances in which it came to their
attention, have raised doubts in the minds of the petitioners regarding its authenticity. They
understood the deceased to have had a difficult relationship with his daughter. They
obtained an affidavit from the deceased's carer that on 10 January 2021 the deceased had just
been released from hospital, that he was housebound, and that no-one other than the second
petitioner visited him that day. They instructed an independent forensic document
3
examiner to provide an opinion as to whether the signature on the second will was written
by the deceased. The examiner's conclusion was that it was "probable" that the signature
was that of the deceased. The deceased had made other wills before 2020. The wills dated
10 November 2020 and 10 January 2021 both contain elements of the deceased's
testamentary intentions as expressed in the earlier wills.
[5]
In these circumstances the petitioners aver that they are uncertain as to whether the
first will, appointing them as executors, was the last testamentary writing of the deceased.
They consider that they cannot, in good faith, proceed to obtain confirmation under the first
will while such uncertainty subsists. The second petitioner is also uncertain as to whether
he has been validly appointed under the second will. The petitioners state that they believe
that they are unlikely to receive any more relevant evidence. They have accordingly
petitioned the court for directions.
[6]
The questions upon which the petitioners seek directions from the court are as
follows:
1.
Whether the first will was the last will made by the deceased.
2.
If the answer to the specific question 1 is in the affirmative, whether the
second will can be disregarded as a testamentary writing of the deceased.
3.
If the answer to the specific question 1 is in the negative, whether the second
will is a valid testamentary writing given there is no identifiable witness and there is
ambiguity regarding the date of signing.
4.
If the answer to specific question 3 is in the affirmative, whether the first will
is to be disregarded as the last testamentary writing of the deceased, therefore
meaning the petitioners have no duties as executors nominate.
4
[7]
When a motion was enrolled for orders for intimation and service of the petition, the
court indicated that it wished to be addressed on the competency of a petition for directions
in the circumstances just described.
Submissions for the petitioners
[8]
It was submitted on behalf of the petitioners that the competency test as set out in
case law was met. The petitioners could not carry out their duties unless they were
confident that they were indeed executors. The powers conferred upon the court by the
former section 6(vi) of the Court of Session (Scotland) Act 1988 were wide. The case raised
questions relating to the administration of an estate and the exercise of powers vested in
executors which required an immediate decision. The questions related to distribution of a
trust estate and were thus within the scope of section 6(vi). As regards alternative
procedure, a special case could not be presented because the facts were not agreed. The
petitioners were unable to discern, in the circumstances, whether they ought to raise an
action for declarator that they were entitled to apply for confirmation as executors
appointed by the first will. Equally, it would not be appropriate for the petitioners to raise
an action seeking either reduction or proof of the tenor of the second will.
[9]
In her oral submission to the court, the solicitor advocate for the petitioners
explained that it was envisaged by the petitioners that the court would answer the questions
on the basis of the facts and circumstances as stated in the petition, without any need to
carry out further enquiry.
5
Decision
[9]
A preliminary issue arises regarding the petitioners' title to apply to the court for
directions. In Chisholm Petrs 2006 SLT 394, it was held that the expression "trustees" in
section 6(vi) could properly be read as including executors nominate. Although the
petitioners were nominated by the deceased as his executors, they have not yet applied for
confirmation. On behalf of the petitioners it was submitted that the expression "trustees" in
section 6(vi) should be interpreted as including unconfirmed executors nominate.
[10]
As has been noted in previous decisions of the court, section 6(vi) was repealed
in 2014, but subordinate legislation including rules of court made under that section remain
in force. In our view the question whether the petitioners qua unconfirmed executors
nominate have title to seek directions for the court remains one of interpretation of the
expression "trustees" in the former legislation and in the extant rules of court (part II of
chapter 63). We are unable to accept the submission that the expression can be construed as
including persons who have been nominated to act as executors but who have not yet been
confirmed as such and, indeed, may never be. In Chisholm Petrs, the court stated
(paragraph 8):
"... (W)e are satisfied that the expression `'trustees'', as used in s 6(vi) of the latter
statute and in the relative rule of court, can properly be read as including executors
nominate. We are also satisfied that the deed by which such executors are
nominated, together with any associated testamentary writing and the relative
confirmation of such executors, can properly be regarded as a `trust deed' for the
purposes of s 6(vi), notwithstanding that such deeds may not make provision for any
continuing purposes." (Emphasis added.)
[11]
Confirmation is thus a necessary ingredient of the equiparation of executors with
trustees for the purposes of the rules applicable to petitions for directions. Until confirmed
as executors, the individuals nominated by the deceased lack the fiduciary capacity which
would entitle them to seek directions from the court. In the present case, depending upon
6
the resolution of the issue of the authenticity of the second will, the nomination under the
first will may never have been effective at all. Without confirmation, the petitioners have no
status different from any other individuals, and do not fall within the scope of persons
entitled to apply for directions. For that reason alone the petition cannot proceed.
[12]
In any event we are not persuaded that the questions to which the petitioners seek
answers fall within the scope of petition for directions procedure. We do not agree that they
can be answered on the basis only of the averments in the petition. In essence the court is
being asked to decide whether the second will was a valid expression of the deceased's final
testamentary instructions. Within the information provided by the petitioners there is
conflict between the handwriting examiner's opinion that the signature is that of the
deceased, and the affidavit evidence that no will was executed by him on the date which the
document bears. That conflict would necessitate enquiry, as would the curious
circumstances in which the second will came to light. It is far from clear how such enquiry,
which may have to address issues of credibility, would be conducted. The petitioners assert
neutrality and the second petitioner is nominated as an executor in both documents. It is not
obvious who, if anyone, would present the competing cases for and against the authenticity
of the second will. A petition for directions is not an inquisitorial process, and it is not for
the court to direct what evidence is to be led, or by whom.
[13]
The criterion for the availability of what was then a new procedure was considered
by the court in Andrew's Trs v Maddeford 1935 SC 857, where Lord President Normand
observed at page 864:
"The difficulty of finding a criterion for practical purposes will arise most frequently
when the question relates to distribution, and I shall confine the remainder of my
observations to that type of case. I think the criterion must be a practical test rather
than a theoretical principle. If what has to be determined is really the rights of
7
parties who have an interest in the trust-estate, and the question of distribution is
subordinate, then a petition for directions can rarely be appropriate."
In Peel's Trs v Drummond 1936 SC 786, the court revisited the scope of the new procedure.
On that occasion Lord President Normand stated (page 794):
"... (I)n a petition for directions, as in any other proceeding, the Court may not be
satisfied that the pleadings afford a satisfactory basis for answering the question put.
In that event the Court may of course refuse to entertain the question, and it may
also direct proceedings in another form."
Finally, in Henderson's Trs v Henderson 1938 SC 461, Lord President Normand observed
(page 464):
"The petition for directions can scarcely play a useful part in our procedure if it is to
be used as a means of throwing into Court, without due consideration and
preparation, questions which ought to be dealt with formally by special case or by
other existing procedure."
[14]
In our view these observations are apposite to the present case. The court is being
asked to determine the rights of parties in the deceased's estate, as opposed to a question
relating to the administration or distribution of the estate. The pleadings in the petition do
not of themselves afford a sufficient basis for the enquiry that would have to be made into
the circumstances of the case. If there is to be a dispute as to which will prevails, that is a
matter best determined by a form of adversarial procedure in the usual way.
[15]
As regards appropriate procedure, we see no reason why any issue as to the
authenticity of the second will cannot be raised and resolved in the context of an application,
which may on current information be a contested application, for confirmation by the
executors nominated under one or other will. If thought appropriate, such an application
could be sisted pending resolution of the issue by other means such as an action for
declarator. The petitioners' neutrality need not prevent them from taking steps that would
at least bring the matter before the court in adversarial proceedings.
8
[16]
For these reasons we do not consider that it is either competent or necessary for the
petitioners to seek directions from the court on the questions in the petition. The motion for
first orders is refused. We find the petitioners entitled to the expenses of this petition out of
the deceased's estate.
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