Irving v Snow
| Jurisdiction | Scotland |
| Judgment Date | 20 June 1956 |
| Date | 20 June 1956 |
| Docket Number | No. 26. |
| Court | Court of Session (Inner House - First Division) |
IST DIVISION.
WritAuthenticationInternational LawNotarial execution of domiciled Scotsman's will in EnglandExecution valid under English lawNotary disqualified by personal interest under Scots lawWhether will validWhether admissible to confirmation in ScotlandWills Act, 1861 (24 and 25 Vict. cap. 114), sec. 2.
The Wills Act, 1861, enacts:Sec. 2. "Every will and other testamentary instrument made within the United Kingdom by any British subject (whatever may be the domicile of such person at the time of making the same or at the time of his or her death) shall as regards personal estate be held to be well executed, and shall be admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made."
A domiciled Scotsman died in hospital in England shortly after a will and codicil had been executed for him notarially at the hospital by his solicitor. The solicitor was nominated in the will to be sole executor and was declared entitled to charge professional fees for his services. The estate consisted wholly of moveable property. In a special case, brought to determine the validity of the will and codicil and whether they could be admitted to confirmation, it was agreed as a fact that the will and codicil were validly executed according to the law of England.
Held that, as the will and codicil were validly executed according to English law, they could be admitted to confirmation in Scotland.
Opinions reserved as to the effect of the will and, in particular, the enforceability of the clause providing for the remuneration of the executor.
Observed, per the Lord President, that a decision on these points might involve reconsideration of the decisions in Ferrie v. Ferrie's TrusteesUNK, (1863) 1 Macph. 291, and Finlay v. Finlay's Trustees, 1948 S. C. 16.
Captain Sir Robert Beaufin Irving, of Bonshaw, Kirtlebridge, in the County of Dumfries, died at Carlisle on 28th December 1954, leaving documents which purported to be a will and codicil, both dated 24th December 1954. The deceased was domiciled in Scotland at both dates and was a British subject. By the will the deceased left his whole estate to his widow, and by the codicil he bequeathed a legacy of 100 to his manservant. He nominated his solicitor, Kenneth Gibbs Sutherland, of Annan, to be his sole executor and declared him to be entitled to charge the usual professional fees for his services. At the date of execution of the deeds the deceased was a patient in the General Hospital, Carlisle, and was too weak to sign them; and his solicitor executed them notarially on his behalf. The estate consisted entirely of moveable property.
A question having arisen as to the validity of the will and codicil in view of the notary's interest under the will, a special case was presented for the opinion and judgment of the Court. The first party was the widow. The second party was the heir in mobilibus ab intestato.
The special case contained the following admissions by the parties:(1) "If the said execution had taken place in Scotland, the said documents would have been null, void and of no effect." (2) "The said documents are validly executed according to the law of England, and would be admitted to probate in England."
The contentions of the parties were stated as follows:
"The party of the first part contends that the will and codicil are valid, and that effect must be given to their provisions.
"The party of the second part contends that the will and codicil are null, invalid and inept, and that no effect should be given to their provisions."
The questions of law were:"(1) Are the documents purporting to be the will and codicil of the deceased valid and of effect? (2) If the answer to question 1 is in the affirmative, is the said Kenneth Gibbs Sutherland entitled to be confirmed as executor nominate on the deceased's estate?"
At advising on 20th June 1956,
LORD PRESIDENT (Clyde).The facts in this case fall within a narrow compass. The late Sir Robert Beaufin Irving, who was a domiciled Scotsman, died in Carlisle. He left no heritable estate, and the issue in this case is concerned only with the moveable estate left by him. Four days before his death, what purport to be a will and a codicil were notarially executed on his behalf and in his presence by a Scottish notary public in Carlisle General Hospital. Under the will the notary is nominated and appointed sole executor and is declared entitled to charge the usual professional fees for his services. It is stated in the case that, if the execution of these deeds had taken place in Scotland, the documents would have been null and of no effect, but it is admitted that the documents were validly executed according to the law of England, and would be admitted to probate in England. The whole question in the case turns, in my view, upon the meaning and effect of this latter admission.
It was contended that Scots law alone was relevant, and that, judged by Scots law, confirmation must be refused. But, in my opinion, this is not so. Under section 2 of the Wills Act, 1861,1 a will made in the United Kingdom shall as regards personal estate be held to be well executed and shall be admitted in Scotland to confirmation if the same is executed according to the laws in force in that part of the United Kingdom where the same is made. On the admission of parties this will was so executed and it follows that it can be admitted to confirmation. But this does not determine the first question put to us in the case, which is whether the documents purporting to be the will and codicil of the deceased are valid and of effect. There is no admission in the case as to the effect of probate in England and as to whether it can ever exclude an appeal to the law of the domicile of a deceased person in determining the validity or effect of his settlement. In Scotland confirmation certainly would not do so, and it would seem that English law is to the same effectsee Cheshire on Private International Law, (4th ed.) pp. 524, 525. But this aspect of the case was not argued to us and we cannot therefore return either a positive or negative answer to the first question. Parties were agreed in asking us not to answer question 2; and, as their object in bringing this case was to determine whether or not the deeds in question can be admitted to confirmation, the appropriate course seems to be for us
not to answer the questions in the case, but to make a finding that, as the deeds were validly executed according to English law, they can be admitted to confirmation in ScotlandIn making this finding we are not to be taken as affirming that the will is valid and of effect, and in particular that the clause providing for remuneration to the notary can be enforced. It may be that in the present instance the point may never arise, and in...
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