Mohammed Rafique And Others V. Mohammed Ashraf And Others
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Neutral Citation | [2013] CSOH 34 |
| Court | Court of Session |
| Docket Number | A340/06 |
| Published date | 05 March 2013 |
| Date | 05 March 2013 |
| Year | 2012 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 34 | |
| A340/06 | OPINION OF LORD McEWAN in the cause MOHAMMED RAFIQUE AND OTHERS Pursuers; against MOHAMMED ASHRAF AND OTHERS Defenders: ________________ |
Pursuers: Kinnear: Drummond Miller LLP
Defenders: Stuart: Lindsays, WS (Third Defender)
5 March 2013
[1] In the case before me the testator first married the third defender by whom he had four children (the fourth to seventh defenders). Having left her he then married the second pursuer, a much younger woman, in Pakistan. By her he had two children. He died there in 2005. It is averred that he made a will in 2003 in Glasgow (the "Scottish will"). That document mainly favours the younger family. It is also alleged that he made a will in 2005 in Pakistan (the "foreign will"). That will favours all the family. There is estate in Scotland and abroad.
[2] There is even mention of a third will and of proceedings which may be ongoing in Pakistan. I will deal separately with that. Evidence on Commission was taken in December 2010 to lie "in retentis". There had been considerable procedure before the case was heard by me and I now briefly summarise that under reference to what I have already written in my opinion of 2 October 2012. Only the defenders are legally aided. The Record closed in January 2008 after some 18 months of procedure. The case was on the Procedure Roll and then a proof was fixed for February 2010. That was discharged and re-fixed for May 2011. Shortly before that diet the third defender lodged a Minute of Amendment introducing a wholly new case. There are lengthy averments of fraud and forgery. A month before it the Lord Ordinary discharged the proof and thereafter a Procedure Roll debate was heard by me in June 2012 over three days. At the end of that, the defenders again sought to amend and I heard parties on that in August, later refusing the motion to amend.
[3] In January 2013 the original Procedure Roll discussion of June last year was concluded and I now turn to consider that.
[4] The action itself can be simply described. It seeks, at the instance of the executor (a nephew of the deceased) and the younger widow, production and reduction of the foreign will of 2005. It is alleged, inter alia, that it is a forgery and it is proposed that this will be proved by a handwriting expert and other documents. The older widow and her family challenge the reduction and attack the validity of the Scottish will. They say that the person who signed it was not the testator but an imposter. They also rely on a number of unusual surrounding circumstances.
Pursuers' argument
[5] In opening the debate for the pursuers Mr Kinnear pointed to the fact that he had lodged a Note of Argument but the defenders had not. I refer to his Note which he followed and relied on. I do not need to repeat it but will simply set out how he developed it. Counsel, in the end, sought to have excluded as irrelevant three large areas of the Record, but accepted that there would require to be a limited proof on some of the facts.
[6] It was not necessary to have any investigation into domicile. It did not matter where the testator was domiciled and even the foreign will claimed he was domiciled in Scotland. The Scottish will was challenged apparently for many reasons but no reduction of it has been sought and there is no plea that it should be set aside "ope exceptionis". The will proves itself and he referred me to the Wills Act 1963 section 1 and the Requirements of Writing (Scotland) Act, 1995. The Scottish will could not be attacked unless some proper attempt was made to reduce it.
[7] In the course of both debates a number of authorities were listed and placed before the Court. A few of these were canvassed at length, some referred to in part and others not at all. For convenience I set them all out here and I will later refer to them in a shorthand fashion, viz: Inglis v National Bank of Scotland 1909 SC 1038; Ellon Castle Estates v McDonald 1975 SLT (notes) 66; Foxley v Dunn 1978 SLT (notes) 35; Nunn v Nunn 1997 SLT 182; Donald v Donald 1913 SC 274; Reddington v Riach's Exec 2002 SLT 537; Doherty v Norwich Union Fire Insurance Soc 1974 SC 213; Vaughan Engineering v Hinkins & Frewin 2003 SLT 428; Black & Campbell v Cameron Ltd (1938) 54 Sh. Ct. Rep 169; Ferrie v Ferrie's Trs (1863) 1 M 291; McLaren v Menzies (1876) 3 R 1151; McBeath's Trs v McBeath 1935 SC 471.
[8] The following text books were also looked at: McLaren: Court of Session Practice; Halliday: Conveyancing Law & Practice; Macphail: Sheriff Court Practice; Stair Society Encyclopaedia, articles on Civil Procedure and Evidence; Walker and Walker: Law of Evidence; Maxwell: The Practice of the Court of Session; Macfadyen: Court of Session Practice.
[9] Rules of Court 28.1 and 53.8 were also looked at.
[10] Of his own cases Mr Kinnear began with Ellon Castle where there was no proper line of defence and the very lengthy averments were not supported by any plea-in-law. It was necessary to put in a plea which would allow a distinct decision on a legal proposition arising out of the facts. Foxley concerned the sale of cars and the defence was a denial of the whole transactions followed by an allegation that the sum sued for was excessive. That was not a relevant defence. Nunn was an action of reduction of an undefended decree of divorce. The case was complicated for a number of reasons but it was found that the averments on the issue were separate and inconsistent and also were not alternatives. They were also described by the Lord Ordinary as vague, equivocal and unclear. Donald said Mr Kinnear was a clear case, was binding and was decisive in his favour. The need for reduction was obvious.
[11] Mr Kinnear concluded by inviting me to exclude certain lengthy passages from the proof which he identified and I refer to later.
[12] In his later reply Mr Kinnear repeated what he had said earlier in the first debate. As the defenders had not lodged a note of argument their preliminary plea should be repelled and proof at large ordered. The only purpose of a proof before answer was to answer a question of legal difficulty. Here there was none. The foreign will was either a forgery or it was genuine. That depended on expert and parole evidence. Any surrounding circumstances to the foreign will could affect its interpretation but not its validity and domicile did not affect its validity. A will was valid according to its place of execution or the domicile of the testator or both.
[13] The actions in Pakistan were not raising or disputing the same point and what was said about these wholly lacked specification. In any case there could not be an action in Pakistan contending for intestacy as against a position in this case relying on the foreign will. The two attitudes were wholly inconsistent.
[14] The defenders had been refused leave to amend. There could not be a finding (as they contended for) of a "probable invalidity" without a proper plea. Such a finding would not affect the status of the Scottish will. In Donald a proper plea was stated and there was compelling authority for saying that in cases like this, an action of reduction was needed where all parties could be called. Without a proper plea the averments were simply irrelevant.
[15] The case of Docherty was not in point as it concerned a decree with no other parties involved. Vaughan was the same. There was no wider ambit. The other three cases in the Supplementary list were different types of actions.
Defenders' argument
[16] Mr Stuart moved me to allow a proof before answer and any objection to the various passages which Mr Kinnear had sought to be excluded could be dealt with under reservation. A proof before answer had been offered.
[17] The defenders were entitled to contradict the pursuers' allegation that the deceased was domiciled in Scotland. Whatever was seen as a declaration in a will...
To continue reading
Request your trial