McDougal v McDougal's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 21 November 1930 |
| Docket Number | No. 15. |
| Date | 21 November 1930 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Lord Mackay.
FraudFacility and circumventionWillReductionSufficiency of averments of fraud and circumvention.
ProcessJury trialForm of issueWillReductionFacility and fraud and circumvention.
A testator executed a settlement in 1924, by which he left the residue of his estate (amounting to about 16,000) equally between his two brothers and their families. The elder of his two brothers having died in March 1929, the testator, a few days after, executed another settlement, by which he left 500 to the widow and 400 to the daughter of his elder brother, and left the whole residue of his estate to his younger brother, and that brother's heirs.
In an action for reduction of the second settlement on the ground,inter alia, of the testator's facility and of circumvention practised by the younger brother and his sons, the pursuers averred that the testator had promised to make provision in his will for his elder brother and that brother's daughter in return for the assistance they had given him in his business, and that he had shown them the terms of the settlement of 1924 as a fulfilment of that promise; that in the autumn of 1928 the testator's memory began to fail and he was confined to the house from November 1928 until his death in May 1929; that during his illness his younger brother and that brother's sons took advantage of the testator's weak and facile condition and influenced him to execute a will in their favour; that this will was prepared by a solicitor who was a stranger to the testator and had been brought to the house by his younger brother; that the testator's other relatives were not allowed to see him; and that the younger brother and his sons impetrated the will. There were no express averments of fraud or circumvention.
Held that, as there were no express averments of fraud or circumvention, and as the averments of the circumstances in which the will was made were not such as, if proved, would entitle a jury to infer that the will had been impetrated by fraud or circumvention, the pursuers had failed to state a case which entitled them to an issue of fraud and circumvention.
Observations by Lord Anderson on the form of issue in an action of reduction of a deed on the ground of facility and fraud and circumvention.
On 2nd October 1929 Miss Mary M'Dougal, 177 Neilston Road, Paisley, brought an action against Archibald Macliver Macdougall, Wilfred Hugh Macdougall, Eric Robert Macdougall, and Andrew Lyall, the trustees acting under the settlement of John M'Dougal, bookseller and stationer in Paisley, dated 14th March 1929, and also against the said Archibald Macliver Macdougall, Wilfred Hugh Macdougall, and Eric Robert Macdougall as individuals, concluding for reduction of the settlement. The summons was subsequently amended so as to add as pursuers certain other individuals who were prejudiced by the settlement.
The pursuers averred:(Cond. 1) "The pursuer, Miss Mary M'Dougal, is the only issue surviving of the deceased James Anderson M'Dougal. The said James Anderson M'Dougal was a bookseller and stationer in Paisley. He carried on business there in partnership with his brother" John M'Dougal, under and in terms of a contract of copartnery, dated 18th December 1880. The said James Anderson M'Dougal died on 6th March 1929, and the said John M'Dougal died on 27th May 1929. The defenders are the trustees acting under the trust-disposition and settlement of the said John M'Dougal, dated 14th March 1929, and registered in the Books of Council and Session 30th May 1929." (Cond. 2) "For many years past, and until he took a shock in October 1924, the said James Anderson M'Dougal had taken upon himself the greater part of the work of the business in which he and his brother, John M'Dougal, were interested. For the last fifteen years he was assisted in the management of the business by the pursuer. During the last four years the pursuer and Mr Matthew Gardner, bookseller, 84 Seedhill Road, Paisley, undertook the full responsibility of the business management. On more than one occasion the said James Anderson M'Dougal approached his brother John with a view to having an alteration made in their respective interests in the profits of the business under and in terms of the contract of copartnery above mentioned. The said John M'Dougal always put his brother James off with promises that he would by testamentary provisions make everything all right for him and his family, and in the year 1924 he informed him that he, John, had made a will, by the terms of which he had left his share in the business and one-half of his estate as a provision for James and his family. In point of fact, by settlement, dated 24th July 1924, the said John M'Dougal made provision for one-half of the residue of his estate being paid or transferred on his death to the said James Anderson M'Dougal, whom failing to his issue. He instructed his law agent, Mr MacRobert, Paisley, to inform the said James Anderson M'Dougal of the provisions he had made in favour of him and his family. This the said Mr MacRobert did shortly after the will was drawn up. Relying entirely on the terms of this will, the said James Anderson M'Dougal continued to carry on the partnership, and took no further steps to have the terms of the contract of copartnery altered. He further, with the consent of the said John M'Dougal, communicated the terms of this will to his wife and daughter, who both agreed that it was in the interests of the said James Anderson M'Dougal and the pursuer to allow the contract of copartnery to stand. The said James Anderson M'Dougal and his daughter, the pursuer, continued to work in the business, and gave their whole time and attention thereto, relying on the agreement above mentioned " (Cond. 3) "For some time prior to his death the said John M'Dougal, although he attended to business, was quite unfit to take any serious part in the conduct thereof. In particular, by the early autumn of 1928 his memory became uncertain; he was in a weak condition physically, and was mentally incapable of transacting any business which required serious concentration of thought; he was forgetful, and frequently failed in the transaction of the simplest business, and was unable to take any but a nominal part in the conduct of the business. Although he attended at the business, he constantly forgot to enter transactions in the books, left cash lying about, and misplaced it, and frequently forgot what he set out to do. He never recovered his mental vigour, and in November 1928 he took ill, and was confined to his house until he died as above mentioned on 27th May 1929." (Cond. 4) "On 8th March 1929 Mr John MacRobert, in answer to a telephone message, called on the said John M'Dougal. The said John M'Dougal stated at this meeting that he desired to make an alteration on his will, dated 24th July 1924, of which Mr John MacRobert showed him a copy. He would not examine the copy, but asked that a search be made among his papers for a summary of his will. After some trouble, this summary was found. The said John M'Dougal then stated he desired to appoint an additional trustee in place of his brother James. He, however, could not recall or recollect the name of the person he desired to appoint. He further stated that he desired to alter certain provisions in favour of Hugh M'Dougal and Mr Wright. He could, however, not give any clear or distinct instructions as to the alterations he desired, and ultimately desired that Mr Thomas...
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