Solicitor acting for executor; certifying application for caution; error in certificate; whether solicitor liable
Zurich GSG Ltd v. Gray & Kellas
Court of Session, Outer House, Lord Brodie : 30 May 2007
This case involved a cautioner (guarantor) suing a firm of solicitors for damages arising out of alleged fraudulent or negligent misrepresentation. Given that most of the discussion involved partnership law I have put it under that category.
Implied revocation of will; child not catered for in will; conditio si testator sine liberis decesserit
Greenan v. Courtney
Court of Session, Outer House, Lady Dorrian : 23 March 2007 : 2007 S.L.T. 355
The testator married, then divorced and the resumed cohabitation with his ex-wife during the course of which she became pregnant. He made a will catering for the child to be born. The child was born but then they split up again. He then re-married and had two further children. Upon his death his first wife claimed that the testator had intended the will to survive the birth of his second child. She claimed that he had spoken to her on the telephone in connection with the payment of child maintenance and had mentioned that she knew where the will was. She also claimed that she had been told second-hand that the testator had been told by his solicitor to make a will after the birth of the second child but had declined to do so.
The second wife raised an action of declarator that the will had been impliedly revoked on the birth of the second child. She relied on the legal presumption of revocation. This was defended by the first wife and child who bore the burden of proving that despite the birth of the children from the second marriage the testator had intended his will to remain in force.
It was also argued by the second wife that the intention of the testator to maintain the will’s validity could only be proved through the writings of the testator. For reasons which are unclear the Requirements of Writing (Scotland) Act 1995 which abolished proof by writ was not mentioned in submissions.
Lady Dorrian decided that
(1) on the basis of 19th century case law, the intention of the testator to keep the will in force could only be proved through the writings of the testator : as there were no such writings the first wife failed to rebut the legal presumption of revocation;
(2) on the facts the first wife’s evidence was unreliable or incredible and the telephone call was not proved to have taken place;
(3) on the facts it was only proved that there may have been a passing comment made to the testator regarding the making of a new will, and that nothing could be inferred from the fact that the testator had not followed up such a comment.
(4) the first wife had failed to rebut the presumption and declarator of revocation should be granted
Comment
The decision seems correct on the facts but appears to be wrong on the exclusion of oral evidence of the testator's intention. It does seem at odds with the Requirements of Writing (Scotland) Act 1995, s. 11 which abolished any rule of law whereby the proof of any matter was restricted to writ.Unfortunately this argument does not appear to have been put to the court.
Zurich GSG Ltd v. Gray & Kellas
Court of Session, Outer House, Lord Brodie : 30 May 2007
This case involved a cautioner (guarantor) suing a firm of solicitors for damages arising out of alleged fraudulent or negligent misrepresentation. Given that most of the discussion involved partnership law I have put it under that category.
Implied revocation of will; child not catered for in will; conditio si testator sine liberis decesserit
Greenan v. Courtney
Court of Session, Outer House, Lady Dorrian : 23 March 2007 : 2007 S.L.T. 355
The testator married, then divorced and the resumed cohabitation with his ex-wife during the course of which she became pregnant. He made a will catering for the child to be born. The child was born but then they split up again. He then re-married and had two further children. Upon his death his first wife claimed that the testator had intended the will to survive the birth of his second child. She claimed that he had spoken to her on the telephone in connection with the payment of child maintenance and had mentioned that she knew where the will was. She also claimed that she had been told second-hand that the testator had been told by his solicitor to make a will after the birth of the second child but had declined to do so.
The second wife raised an action of declarator that the will had been impliedly revoked on the birth of the second child. She relied on the legal presumption of revocation. This was defended by the first wife and child who bore the burden of proving that despite the birth of the children from the second marriage the testator had intended his will to remain in force.
It was also argued by the second wife that the intention of the testator to maintain the will’s validity could only be proved through the writings of the testator. For reasons which are unclear the Requirements of Writing (Scotland) Act 1995 which abolished proof by writ was not mentioned in submissions.
Lady Dorrian decided that
(1) on the basis of 19th century case law, the intention of the testator to keep the will in force could only be proved through the writings of the testator : as there were no such writings the first wife failed to rebut the legal presumption of revocation;
(2) on the facts the first wife’s evidence was unreliable or incredible and the telephone call was not proved to have taken place;
(3) on the facts it was only proved that there may have been a passing comment made to the testator regarding the making of a new will, and that nothing could be inferred from the fact that the testator had not followed up such a comment.
(4) the first wife had failed to rebut the presumption and declarator of revocation should be granted
Comment
The decision seems correct on the facts but appears to be wrong on the exclusion of oral evidence of the testator's intention. It does seem at odds with the Requirements of Writing (Scotland) Act 1995, s. 11 which abolished any rule of law whereby the proof of any matter was restricted to writ.Unfortunately this argument does not appear to have been put to the court.
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