McILDOWIE v MULLER
| Jurisdiction | Scotland |
| Judgment Date | 16 February 1979 |
| Date | 16 February 1979 |
| Docket Number | No. 20. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Succession—Constitution and validity of testaments—Formalities of execution—Notarial execution of will—Disqualification of notary on ground of personal interest—Partner of notary appointed trustee under will—Whether will validly executed.
By his will, executed by a notary, a testator made certain bequests. One of the trustees and executors under the will was a law agent and the notary was a partner of the law agent. The will did not contain the usual clause authorising remuneration of the trustee for professional services in connection with the trust. The law agent, as the sole surviving executor nominated in the will, applied for a warrant for confirmation. The application was refused by the Sheriff. The law agent appealed to the Court of Session.
Held that the notary did not have a disqualifying interest which invalidated the deed.
Observed that where a notarially executed deed appoints the notary's partner as a trustee then something more is required before it can be said that the notary had a disqualifying interest. Whether that something more is present or not depends on the facts of each individual case.
Finlay v. Finlay's TrusteesSC 1948 S.C. 16 distinguished.
James Robert M'Ildowie presented a petition to the Sheriff of Tayside Central and Fife at Alloa craving the Court to grant warrant to the commissory clerk to issue confirmation in his favour as executor-nominate of the decreased Jacob Sabastian or Sebastian. The petition set forth that: "1. The said Jacob Sabastian or Sebastian died at The Royal Infirmary, Stirling on the Seventeenth day of March, Nineteen hundred and seventy eight. He had at the time of his death his ordinary or principal domicile in the Sheriffdom of Tayside Central and Fife in Scotland. 2. The said Jacob Sabastian or Sebastian left a Will dated Twenty sixth October, Nineteen hundred and seventy seven which was notarially executed. In this Will James Millar residing at Rhodders Farm, Alva was appointed Executor whom failing James Robert M'Ildowie, Solicitor, 51/53 High Street, Dunblane. The said James Millar died on 26th March, 1978 without having accepted office or applied for Confirmation as Executor. In the circumstances it appears that James Robert M'Ildowie is appointed sole Trustee and Executor on the failure of James Millar the first named Trustee and Executor. The Will was executed on behalf of Jacob Sabastian or Sebastian by Ronald Stuart Sutherland, Solicitor and Notary Public, 51/53 High Street, Dunblane, who is a Partner of James Robert M'Ildowie and this might invalidate the Will."
The petitioner pleaded that he, being the executor nominated by the said Jacob Sabastian or Sebastian was in the circumstances averred entitled to confirmation as such.
On 12th September 1978 the Sheriff (Henderson) held that the petitioner had, or must be deemed to have had, a disqualifying interest in the will when it was executed and accordingly was not entitled to be decerned executor-nominate as craved. He therefore refused the crave of the petition.
The petitioner appealed to the Court of Session. The appeal was heard by the Second Division on 17th and 18th January 1979.
At advising on 16th February 1979, the opinion of the Court was delivered by the Lord Justice-Clerk.
LORD JUSTICE-CLERK (Wheatley).—The late Jacob Sebastian (hereinafter referred to as "the testator") died in Stirling on 17th March 1978. He left a purported Will (hereinafter referred to as "the Will") dated 26th October 1977. At the time the Will was made the testator declared his inability to write and the Will was accordingly executed notarially, being signed on behalf of the testator by Ronald Stuart Sutherland, Solicitor and Notary Public, Dunblane. By the Will, James Millar, Alva, was appointed trustee and executor, whom failing the appellant, who was and is a solicitor and a partner of the said Ronald Stuart Sutherland. The testator's whole means and estate were assigned and disponed to his trustees in trust for the purposes set out in the Will. James Millar died shortly after the testator without having accepted office or applied for Confirmation as executor. The appellant, by petition, applied to the Sheriff at Alloa to grant warrant to the Commissary Clerk to issue Confirmation in favour of the appellant as executor nominate of the testator. By interlocutor dated 12th September 1978 the Sheriff refused the application and against that interlocutor the present appeal is taken.
The broad general principle upon which falls to be determined the validity of a notarially executed Deed is thus stated by Lord President Cooper in Finlay v. Finlay's TrsSC. 1948 S.C. 16 at p. 24: "The authorities cited to us demonstrate that, not only in Scotland but in many other countries, the notary public has enjoyed from the earliest times a very privileged position as a public functionary, his privilege depending very properly upon his disinterested independence of the transactions which he records or the judicial acts which...
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