Finlay v Finlay's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 30 October 1947 |
| Date | 30 October 1947 |
| Docket Number | No. 3. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Sorn.
WritAuthenticationNotarial execution of willDisqualification of notary on ground of personal interestPartner of notary appointed trustee under willTrustees empowered to appoint law agents from their own number and to remunerate themWhether will validly executed.
By his trust settlement, executed by a notary, a testator left his house to his wife, a legacy payable only out of residue to the son of a former marriage, and the residue to his wife whom failing to the son. One of the trustees was his law agent, and the notary was a partner of the law agent. The settlement contained a clause authorising the appointment by the trustees of law agents out of their own number and their remuneration.
Held that the notary had a disqualifying interest which invalidated his execution of the deed.
Dr Thomas Finlay, who died on 6th August 1945, left a settlement dated 26th July 1941 drawn by his law agent, a partner in a firm of law agents. By it he conveyed his whole means and estate to his wife, to William David Paton Finlay his son by a former marriage, and to the law agent, as trustees. The purposes of the settlement were the conveyance of his dwelling-house to his wife, the bequest of a legacy of five hundred pounds out of residue to his son, and the payment of the remaining residue to his wife, whom failing to his son. The settlement contained a clause empowering his trustees to appoint law agents out of their own number and to allow them the usual remuneration.
Owing to the state of his health the settlement was notarially executed, the notary being another partner of the firm.
William David Paton Finlay brought an action against the trustees and against the notary and the firm, to have the will reduced on the ground that it was not validly executed in respect that the notary, as a member of the firm of law agents, had a personal interest in the deed. The action was defended by the trustees other than the pursuer, who averred that he had resigned office prior to bringing the action.
The pursuer pleaded:"(1) The said pretended trust-disposition and settlement not being duly executed in respect that the notary by whom it bears to be signed (a) is a partner in a legal firm with one of the persons nominated therein as trustees and executors, (b) is a partner in a legal firm which in terms thereof has purported to act as law agent in the pretended trust, and (c) takes benefit thereunder or at least has the possibility of benefit thereunder in the circumstances condescended on, is null. (2) The said pretended trust-disposition and settlement, being a nullity, could not be homologated by the pursuer, and he is entitled to insist in the present action for reduction. (3) The irregularity complained of by the pursuer not being an informality of execution within the meaning of the Conveyancing (Scotland) Act, 1874, section 39, decree should be pronounced in terms of the conclusion of the summons. (4) The pursuer, not having homologated the said deed, is entitled to decree in terms of the conclusion of the summons. (5) The defences are irrelevant and should be repelled."
The defenders pleaded, inter alia:"(3) The said trust-disposition and settlement being validly executed according to law and not being vitiated by any of the circumstances condescended on, decree of reduction should not be pronounced and the defenders should be assoilzied. (4) Separatim. The said trust-disposition and settlement, having been executed ex facie validly and no ground of reduction appearing ex facie of the deed, and it having in fact been executed in bona fide and with due care by the said notary, is not subject to reduction, and the defenders should be assoilzied. (5) The pursuer, having accepted office as trustee under the said trust-disposition and settlement and having thus homologated the deed as condescended on, is barred from insisting on the...
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