Lillian Henderson Fraser And Others V. Mcarthur Stewart And Others
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2008] CSOH 159 |
| Court | Court of Session |
| Year | 2008 |
| Date | 14 November 2008 |
| Published date | 14 November 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 159 | |
| OPINION OF LORD BRAILSFORD in the cause LILLIAN HENDERSON FRASER & OTHERS Pursuer; against McARTHUR STEWART & OTHERS Defender: ________________ |
Pursuer: Mr Sutherland; Anderson Strathern
Defender: Miss Haldane; Dundas & Wilson
14 November 2008
[1] This case appeared before me for discussion on the Procedure Roll. In that debate the defenders argued their first plea in law, a plea to the relevancy and specification, but did not insist on their second preliminary plea. The defenders motion was that the case should be dismissed. The pursuers submitted that a proof before answer of all pleadings should be allowed.
[2] As a matter of averment the second and third pursuers are residuary beneficiaries under a will of the late James Forbes Fraser (hereinafter referred to as "James Fraser"). The first pursuer is the widow of the late Alexander Fraser a brother of James Fraser. Alexander Fraser survived his brother and died in 2005. Alexander Fraser was a residuary beneficiary under the will of James Fraser. The first pursuer is, following the death of her husband, a residuary beneficiary of James Fraser. The first defenders are a firm of solicitors and the second to ninth defenders are past or present partners in that firm said to be liable for the debts and liabilities of the first defenders. James Fraser was prior to his death, the owner of Croft 19 and 20 North Ballachullish, Kilnallie, Fort William (hereinafter referred to as "the said croft"). It is averred that in or about 1997 James Fraser was in poor health and following the death of a brother in July that year decided that he wanted to make a will. He discussed his wishes and his testamentary intentions with members of his family and thereafter "....contacted the first defenders in or about October 1997 for the purpose of making a will to give effect to his wishes". It is further averred that "...he intended that, apart from special financial bequests to a charity and the church, that Alexander Fraser, the second pursuer, the third pursuer and Helen Fraser were to become the beneficiaries of an equal share of the whole of the remainder of his free estate". Helen Fraser referred to in the passage of the pleadings I have referred to is a fourth residuary beneficiary of James Fraser. The present action has been intimated to her but she has not entered the process. The first defenders accepted James Fraser instructions in relation to the preparation of a will. It is averred that James Fraser was advised by an employee of the first defender that "a croft could not be divided and that in order to pass on the croft he would require to nominate an individual as the tenant of the croft". James Fraser was unhappy with this advice as it was contrary to his wishes for the disposal of his estate on his death. He discussed the matter with members of his family and delayed making any will because of his "agitation" with the advice. Ultimately however he followed the advice and instructed the first defenders to prepare a will nominating an individual as tenant of the croft. A will was drafted giving effect to this advice and nominating an individual as tenant of the said croft and this will was signed on 4 February 1998. James Fraser died on 12 July 1998 leaving the will of 4 February 1998 as his final and operative testamentary statement. [3] The advice given by the first defenders to James Fraser was wrong. I interject to state that this point was accepted by counsel for the defenders. It would have been possible to have prepared a will in a manner which gave effect to James Fraser's testamentary intentions. It is averred that as a result of the wrong advice given to James Fraser, which is averred to be negligence on the part of the defenders, each of the pursuers suffered loss, injury and damage. The loss which the pursuers are said to have suffered as a result of this negligence is of a legacy of the said croft with vacant possession.
[4] At the outset of the debate Miss Haldane for the defenders presented an initial argument submitting that certain passages in the pursuers' pleadings were irrelevant. She identified in this category averments in article 2 of condescendence commencing at page 9A of the Closed Record (as amended) with the words "At the material...." and concluding at 9D with the words "...., several weeks after the death of James Fraser." Regardless of the main argument she was advancing Miss Haldane submitted that these averments should be excluded from probation.
[5] Miss Haldane's principal submission was the contention that as a matter of averment this case fell into the category of claims by intended or disappointed beneficiaries. She submitted that in order relevantly to aver a case of negligence against solicitors it was incumbent upon disappointed beneficiaries to offer to prove, (1) that they were intended beneficiaries under a will (2) that the defenders, the solicitors, were aware that the pursuers were intended beneficiaries under a will (3) that the defenders failed to obtemper a testators instructions in that they failed to create a testamentary document that gave effect to a testators intentions and (4) that as a result of negligence by the defenders the pursuers had reasonably foreseeably been denied of a specific legacy under a will. In formulating these submissions Miss Haldane drew my attention to two passages in the pleadings....
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