Robin David Fulton & Others Against Keith Muir
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Neutral Citation | [2017] CSOH 25 |
| Court | Court of Session |
| Published date | 15 February 2017 |
| Year | 2017 |
| Date | 15 February 2017 |
| Docket Number | A637/15 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 25
A637/15
OPINION OF LORD PENTLAND
In the cause
ROBIN DAVID FULTON & OTHERS
Pursuers
against
KEITH MUIR
Defender
Pursuer: MacColl; Turcan Connell
Defender: R Anderson; MacRoberts LLP
15 February 2017
Introduction
[1] This action has been brought for the purpose of resolving an issue that has arisen as to whether an informal writing left by a testator, in addition to a formal will and two codicils, requires be given effect. The informal writing in question (“the disputed writing”) purports to bequeath a legacy of £75,000 to the testator’s sister-in-law. The case came before me for a proof before answer. The whole of the evidence was agreed in two joint minutes, with the result that the hearing took the form of submissions on the agreed facts and on the law applicable to them.
The Agreed Facts
[2] The pursuers are the executors of the late Iain Donald Fraser Gray (“Mr Gray”) by virtue of a deed of assumption and conveyance in their favour granted in June and July 2014 by the previous executors. The defender is Mr Keith Muir. He is the executor of the late Mrs Jean Manson, the beneficiary under the disputed writing. Mrs Manson was Mr Gray’s sister.
[3] Mr Gray died on 1 September 2008. His wife, Mrs Moyra Campbell Gray (“Mrs Gray”), had predeceased him, having died on 10 March 2008. At the time of their respective deaths, Mr Gray and Mrs Gray resided at 36 Callart Road, Dalfaber, Aviemore.
[4] Mrs Gray died leaving a will dated 6 December 2004, in terms of which Mr Gray was appointed as her executor. The will was a professionally prepared document; it included several straightforward directions. By clause (THREE) Mrs Gray directed her executor to make over the residue of her estate to her husband, Mr Gray. The will provided also, in clause (FOUR), that Mrs Gray’s executor was to have the fullest powers of retention, realisation, investment, appropriation, transfer of property without realisation, and management of her estate as if he was absolute beneficial owner.
[5] In addition, Mrs Gray left two codicils to her will; these were dated 23 December 2005 and 1 February 2007. In terms of the first of the codicils Mrs Gray provided inter alia as follows:
“I direct my executor to give effect to any writings subscribed by me however informal the same may be provided that in the opinion of my executor they clearly express my intentions.
And except as herein amended, I confirm my said Will in all respects.”
[6] By her second codicil Mrs Gray gave certain further directions as to the disposal of her estate; these provisions are not material for the purposes for the present action. The second codicil went on to provide that, except as amended by it, Mrs Gray confirmed her will and the first codicil thereto in all respects.
[7] At the date of her death, Mrs Gray also left a total of sixteen documents, partially typewritten and partially handwritten, headed “Informal Writings of Moyra C Gray”. These documents were dated 1 March 2006 and in some cases also dated 7 May 2006. Each of these documents was signed by Mrs Gray. Some were also signed by Mr Gray. The validity or invalidity of all but one of these documents is not the subject of any ongoing challenge or disagreement. One of the documents is, however, the subject of disagreement as to its effect; this is the informal writing to which I refer in this opinion as “the disputed writing”.
[8] The disputed writing is an informal writing bearing the dates of 1 March 2006 and 7 May 2006. It is signed by Mrs Gray and by Mr Gray. In view of its importance for the purposes of the present proceedings, I shall set out the terms of the disputed writing in full. The capitalised words which appear in the disputed writing have been typed; the other words appearing in the disputed writing have been written by hand. The terms of the disputed writing are as follows:
“INFORMAL WRITINGS
OF
MOYRA C. GRAY
36 CALLART RD
DALFABER
AVIEMORE
PH22 1SR
01 – 03 – 2006
TO MY TRUSTEES,
I DIRECT YOU TO GIFT AND MAKE OVER THE FOLLOWING LEGACIES AFTER MY DEATH & my husbands.
£75,000 to my sister in law
Mrs Jean Manson
Canisbay P.O.
Moyra C Gray
7/5/06
(Mr Gray’s signature appears here)
[MOYRA C. GRAY]”
[9] The issue of construction arising in the present action revolves around the meaning and effect of the words, which are partly typewritten and partly handwritten: “after my death & my husbands”. The pursuers contend that these words imposed a suspensive condition meaning that the legacy became payable to Mrs Manson or her successors only in the event that Mr Gray died before Mrs Gray. Since he survived her, the suspensive condition has not been and can never now be purified, with the result that the legacy is not payable to the defender as Mrs Manson’s executor. In the circumstances, the pursuers seek declarator that the disputed writing does not give rise to or result in any bequest being payable from Mrs Gray’s estate in favour of Mrs Manson or her executor.
[10] For his part, the defender submits that the only conditionality affecting the bequest to Mrs Manson is that payment of it falls to be made at the point in time when both Mrs Gray and Mr Gray have died; in other words, the condition is cumulative in the sense that both parties require to have died before the legacy is payable. According to the defender, the condition does not address the question of the order in which the deaths of Mr and Mrs Gray require to occur before the bequest can take effect; it merely provides that they must both have died.
[11] I should explain at this stage that Mrs Gray left two other informal writings which contained identical or very similar words to those in issue in the present case. Each of these further informal writings is set out in the same way as the disputed writing and each of them bears the date of 1 March 2006. They have both been signed by Mrs Gray and by Mr Gray. The first of these further informal writings bears the additional date of 7 May 2006. It states that “after my death and also my husband’s” the estate is to be divided equally between “his 3 charities” and certain other specified charities “after the other bequests are paid”. I understood from what counsel told me at the proof that the terms of this informal writing have not been implemented. For convenience, I shall refer to this informal writing as “the second informal writing”.
[12] The other informal writing that is of relevance says that “after my death & my husbands” the sum of £30,000 is to be paid to a named dog (I was told that this was the family pet) and to a specified lady “for their mutual benefit”; there was further provision for a legacy of £30,000 to be paid to the same lady “on my death”. It was not disputed at the proof that the dog had died before the bequest in its favour could be implemented. I understand that the separate legacy of £30,000 was paid to the lady identified in the informal writing. I shall refer to this informal writing as “the third informal writing”.
[13] Following upon Mrs Gray’s death, Mr Gray was confirmed as her executor on 9 July 2008. Prior to and following upon his confirmation, Mr Gray took steps to act upon many of the informal writings left by his wife and make payments to the named beneficiaries from Mrs Gray’s estate. Payments made pursuant to other informal writings were made within six months of Mrs Gray’s death. Mr Gray did not, however, take any steps to act upon or implement the disputed writing.
[14] At the time of Mr Gray’s death on 1 September 2008, succession to his estate was regulated by a trust disposition and settlement dated 15 June 2004 and a codicil dated 1 February 2007.
[15] The parties were agreed that affidavits signed by Mr Robin David Fulton and by Mr Robert Buchanan Alexander Bolton, both solicitors, should stand as their evidence.
[16] In his affidavit, Mr Fulton summarises the circumstances in which he and TC Trustees Limited came to be appointed as Mr Gray’s executors. The details are not relevant for present purposes. Mr Fulton explains that following Mrs Gray’s death, Mr Gray made a number of payments in his capacity as executor of his late wife; these were based upon the informal writings. He confirms that no payment was made or so far as he is aware was instructed to be made by Mr Gray on the basis of the disputed writing. Mr Fulton goes on to explain that the defender, as Mrs Manson’s executor, is defending the present action on the basis that the disputed writing formed a valid testamentary instrument and should be given effect. In other words, the defender’s position is that effect should be given to the purported legacy of £75,000 bequeathed to Mrs Manson. The view of Mr Gray’s executors is that this is a matter which should be determined by the court.
[17] Mr Bolton was formerly Mr Gray’s executor. In his affidavit, Mr Bolton says that in the course of winding up Mr Gray’s estate he took the view that Mr Fulton’s advice should be sought and that he should be appointed as executor because the executory was a particularly difficult one which required a greater expertise than could be provided by a small firm, such as the one in which Mr Bolton is a partner. Mr Bolton goes on to explain that Mrs Gray left sixteen documents, part typewritten and part handwritten, containing her informal writings and that the question of the validity of only one of these informal writings is the subject of the present proceedings. Mr Bolton says that he does not recall any discussion with Mr Gray about the legacy of £75,000 left to Mrs Manson. He has, however, helpfully produced certain attendance notes from his files. He explains that it is his practice always to attempt to make contemporaneous notes for his file within a few hours of a telephone call or meeting or of instructions being given. Mr Bolton states that it is his recollection that shortly before Mrs Gray died he discussed...
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