Lamb v Lord Advocate and Others
| Jurisdiction | Scotland |
| Judgment Date | 27 February 1976 |
| Date | 27 February 1976 |
| Docket Number | No. 10. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Grieve.
Succession—Survivance—Uncertainty—Standard of Proof—Balance of Probabilities—Presumption of Survivance—Sec. 31 (1), Succession (Scotland) Act 1964 (cap. 41).
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Sec. 31 of the Succession (Scotland) Act 1964 provides inter alia:"(1) Where two persons have died in circumstances indicating that they died simultaneously or rendering it uncertain which, if either, of them survived the other, then, for all purposes affecting title or succession to property or claims to legal rights or the prior rights of a surviving spouse, (a) where the persons were husband and wife, it shall be presumed that neither survived the other;…"
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John Grant left a will leaving his whole estates to his wife Agnes Grant. At the time of his death he had no other relatives. Mrs Grant was survived by her sister, Mrs Lamb, the pursuer, and two brothers, Walter and David Young. Mr and Mrs Grant died in a fire at their home. The pursuer would be entitled to a share in the estates of Mr Grant if he died before his wife.
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The Lord Ordinary (Grieve) held that the standard of proof upon the pursuer to resolve the question of uncertainty of survivance was such evidence which, short of establishing certainty, was sufficiently reliable to warrant a definite conclusion as to which of two or more persons survived the other or others; and that the pursuer had failed to discharge the burden of proof upon her.
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Held (rev. judgment of Lord Grieve) (1) that sec. 31 (1) of the 1964 Act did not introduce a new standard of proof; (2) that sec. 31 provided presumptions only where there was uncertainty because a pursuer failed to prove survivance; (3) that the standard of proof of survivance was proof on a balance of probabilities; and (4) that the pursuer had established it was more probable that Mr Grant died before Mrs Grant.
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Dicta in Hendry v. Clan Line Steamers Ltd.1949 S.C. 320referred to. Observations in Hickman v. PeaceyELR [1945] A.C. 304 considered. Re Bate (deceased), Chillingworth v. BateUNKUNK [1947] 2 All E.R. 418, [1947] L.J.R. 1409; In re Plaister, Perpetual Trustee Co. v. Crawshaw [1934] 34 S.R. (N.S.W.) 547;Adare v. FairplayUNK [1955] 2 D.L.R. (2d) 67considered.
Mrs Jean Young or Lamb brought an action for declarator that "at the time of her death on 27th March 1968 Mrs Agnes Young or Grant had right to the estates heritable and moveable of John Grant deceased, and that accordingly the pursuer as one of her heirs on intestacy had right to a one-third pro indiviso share of the aforesaid estate of the said John Grant deceased." The LORD ADVOCATE, as representing the Lords Commissioners of Her Majesty's Treasury, was called for any interest the Crown might have asultimus haeres, and WALTER YOUNG and DAVID YOUNG, the brothers of the pursuer and of Mrs Grant, were cited as defenders. The action was not defended.
Mr and Mrs Grant lived in a second floor flat at 12 Waverley Park, Edinburgh, with Walter Young. Mr Grant was 69, had been gassed during the First World War, and was in poor health. As a result he spent much of his time in bed and had difficulty in getting up. He was slow on his feet and not very active. Mrs Grant was aged 66 and in good health. At about 4.30 a.m. on 27th March 1968, Walter Young woke up to discover a fire had started in his room which he failed to put out. The fire spread. He went to the kitchen where Mr and Mrs Grant were sleeping to rouse them. Mrs Grant got up and dressed. Mr Young thought that Mr Grant also got up, but he was not certain. Mrs Grant went out of the house to the street and walked 100 yards along the street to a telephone kiosk where she unsuccessfully tried to telephone the emergency services. On her way back she met Mr Donaldson who went to telephone for her. Mrs Grant went back into the tenement close and knocked up Mr Hogg who lived on the ground floor. She then went up to her own house. She was seen by a neighbour, Mr Bowman. The house was now well-alight. Mr Bowman saw Mrs Grant run into the house. She screamed, then Mr Bowman heard no more. Mr Donaldson arrived to find the house an inferno, with very heavy smoke coming from the hall. He heard Mrs Grant shout for help, he thought from the kitchen. Mr Donaldson saw Mr Young's legs lying in the hall-way and managed to pull him out. No one could get into the house because of the heat. The fire-brigade arrived at about 5a.m. Mr and Mrs Grant were found dead.
On 1st August 1975, after a proof before answer, the Lord Ordinary (Grieve) repelled the pursuer's plea-in-law and refused the declarator.
At advising on 27th February 1976,—
LORD JUSTICE-CLERK (Wheatley).—This is an action of declarator in which the Court is asked to hold that at the time of her death on 27th March 1968 Mrs Agnes Young or Grant had right to the heritable and moveable estate of her deceased husband, John Grant, and that, accordingly, the pursuer as one of her heirs on intestacy has right to a one-thirdpro indiviso share of the aforesaid estate of the said John Grant. I doubt whether the latter part of this declarator is in proper form, but it makes no material difference to the point which the pursuer is seeking to establish and what...
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