Galletly v Macfarlane
| Jurisdiction | Scotland |
| Judgment Date | 01 August 1843 |
| Docket Number | No. 1 |
| Date | 01 August 1843 |
| Year | 1843 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Lord Justice-Clerk. Jury Cause.
No. 1
Galletly
and
Macfarlane
Writ—Testament—Stat. 1579, c. 80.—
MARGARET BLACK, by a last will and testament, bequeathed the greater part of her property (which consisted of between two and three hundred pounds in money) to George Macfarlane and others, her nephews by a deceased sister. This deed was not written or subscribed by Margaret Black, she never having been taught to write, but was notarially executed by one notary and two witnesses. Upon her death, a reduction was brought of this will by Janet Galletly and others, Margaret Black's nieces by another sister, on the ground that, at the time it was prepared and executed, Margaret Black was, from the near approach of death, incapable of giving directions for its preparation, or of understanding its contents, or of hearing it read over to her, or of signifying her consent to its execution. A plea was stated by the pursuers on the record, that the testament was improbative and insufficient to exclude their claims, in respect it was neither subscribed by Margaret Black herself, nor by two notaries with four witnesses. The issue to try the case was—
‘Whether the writing, No. 4 of process, bearing date 19th April 1842, is not the deed of the late Margaret Black, residing at Tirfuich.’
At the trial, before the issue was read, the
Question, Whether a last will and testament, bequeathing between two and three hundred pounds in money, the testator being unable to write, could be validly executed by one notary and two witnesses.
1 Stair, III. 8, 34. Ersk. III. 2, 28. Tait on Evidence, (1834,) p. 109.
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