Sheila Ritchie Against James Dominic Gallacher Nelson (ap)
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Neutral Citation | [2016] CSOH 35 |
| Court | Court of Session |
| Docket Number | A287/13 |
| Published date | 04 March 2016 |
| Date | 04 March 2016 |
| Year | 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 35
A287/13
OPINION OF LORD CLARKE
In the cause
SHEILA RITCHIE
Pursuer;
against
JAMES DOMINIC GALLACHER NELSON (AP)
Defender:
Pursuer: Henderson; Drummond Miller LLP
Defender: Ardrey; Allan McDougall
4 March 2016
[1] In this action, which came before me for proof before answer, the pursuer seeks reduction of a disposition granted by her deceased aunt of subjects at 24 Eaglesham Road, Clarkston, Glasgow in favour of the defender and others, dated 2 July 2007 and recorded in the General Register of Sasines applicable to the County of Renfrew on 10 July 2007.
[2] The pursuer is the executrix-dative of Mary Gallacher, her deceased aunt and disponer of the said disposition (hereinafter referred to as “the deceased”), who died on 31 March 2011 aged 96. The pursuer was confirmed as executrix-dative on 31 March 2011 conform to an interlocutor of the sheriff at Hamilton dated 20 March 2012. The pursuer claims, in these proceedings, that the aforementioned disposition falls to be reduced either because the deceased did not have, at the date of its execution, the necessary mental capacity to grant the deed or, alternatively, that if falls to be reduced having been obtained through facility and circumvention. As will be seen the hearing before me was primarily focussed on the question as to whether the deceased had the necessary legal capacity to grant the disposition in question, the pursuer maintaining that she did not, the defender maintaining that she did. While the pursuer maintained her case based on facility and circumvention that case was, in the event, perhaps, less developed.
The evidence
[3] The subjects to which the present proceedings relate were the home of the deceased for many years, the background being as follows. The deceased came from a very large family. On the death of her mother in 1963 the deceased became, in effect, the head of the Gallacher family. In 1966 the subjects were purchased in the name of the deceased, a sister, Grace Gallacher (died 1992) and her brother Francis Gallacher (died 1999). There was some evidence that the subjects were purchased by funds which had originally been acquired by the deceased’s father on his selling of his turf accountant’s business.
[4] From 1966 onwards, as well as the deceased, the said Grace Gallacher and the said Francis Gallacher, there were living in the said subjects for different periods, the deceased’s brother Hugh Gallacher (died 1990), her brother Robert Gallacher (died 1981), her sister, the defender’s mother Catherine Gallacher or Nelson, who died on 5 April 2008 and the defender’s brother Francis (died 2006). In total the deceased had 11 siblings all of whom predeceased her, one of the sisters, Elizabeth Devlin, being the mother of the pursuer.
[5] It appeared reasonably clear, from the evidence, that the family saw themselves, for whatever reasons, as being divided into two groups – those who were members of the family who over the years resided in the said subjects and the others. The deceased’s brother Robert and her sister Catherine, although they resided at the said subjects, did not have any title to them because both of them were separated from their spouses, but not divorced, and there was a concern that their spouses might, in the event, of their predeceasing them claim a share in the said subjects. The other disponees of the said subjects under the 1966 disposition were Grace, who predeceased the deceased, and died without evacuating the destination contained in the disposition. The defender, in his answers, refers to two wills executed by the deceased, the first dated 7 May 1981 and the second dated 10 November 2004, copies of which were lodged in process as numbers 7/12 and 7/13. In that respect I should indicate that the appointment of the pursuer, as executrix-dative to the deceased, is now challenged in proceedings in the sheriff court which were sisted on 23 October 2013. The process in those proceedings was ordered by this court to be transmitted to it by interlocutor of 6 November 2015.
[6] I heard evidence from the pursuer herself and Edwina Nelson the widow of Francis Nelson, the brother of the defender. The pursuer also led evidence from Stephen Lawrence, the former boyfriend of the defender’s daughter Suzanne Nelson, Mr J R Duff solicitor and two medical witnesses, Dr Damian Francis Lynch and Dr Rachael Clarke. The defender himself gave evidence as did his wife, Mrs Susan Nelson, and their son James Richard Nelson. The evidence of the defender’s daughter Suzanne was taken on commission. A friend of the defender’s Michael McPhee gave evidence and there was led, on behalf of the defender, a medical witness Dr Rajdeep Routh. The defender also lodged, and sought to rely on, an affidavit from a solicitor Mr Hugh Kennedy, a former partner in business of the said Mr Duffy. The affidavit is 7/15 of process and is dated 10 January 2014. I was given to understand that Mr Kennedy has subsequently died. He was 79 years of age at the date on which he deponed.
[7] From the evidence before me I am able to accept that the deceased was a lady who had kept good physical health throughout her life until towards the very end of that life and was one who sought to avoid doctors and the taking of medicine. I accept also that her life revolved largely around those members of the family with whom she lived and latterly her sister, the defender and his family. She had little or no other social contacts. She showed an interest, along with her sister, in betting on racehorses which was a daily hobby of theirs. She also enjoyed attending bingo sessions. Apart from such excursions to places, such as Largs, that was the extent of her social life.
[8] The pursuer, herself, accepted that she saw the deceased only very infrequently over the years and that occurred normally at family events, such as weddings and funerals. She had last seen the deceased in 2001 on the occasion of her own daughter’s wedding. In recent years the pursuer had herself been seriously ill which had severely reduced the opportunities for her to visit the deceased. She learned that the deceased had been admitted to hospital at a time which was not specified by her. She said that she phoned to ask about the deceased’s welfare. She was not informed by the defender that the deceased had died. She received that news some time after the deceased’s funeral from a care worker who had worked at the nursing home where the deceased had died.
[9] The pursuer understood that the defender was claiming that he had inherited the deceased’s property. She did not consider that that was right. She was unaware of the deceased having left any will and did not enquire as to whether or not that was the case. She sought appointment as executrix-dative. Her solicitor made enquiries, on her behalf, which, she said, indicated that the deceased had been suffering from advanced dementia during the last year or so, prior to her death. On receipt of that information she instructed the present proceedings. She accepted there was a long-standing estrangement between the two branches of the family, “the Eaglesham Road circle”, of whom the defender was a member, and the other relatives including herself. She could not accept that the defender had acted like a son towards the deceased and was so treated by the deceased.
[10] The witness Edwina Nelson, widow of the late Francis Nelson, who was the defender’s brother, advised the court that since 1989 she and Francis had lived in Clarkston, their home being some five minutes away from the deceased’s home. This witness said that she and her husband Francis were close to the deceased and her sister and used to visit them most days over a period of about 20 years. They took the deceased and her sister on holiday once a year until about 2003 or 2004, when as the witness put it the deceased “was a bit losing it” and was becoming too much to cope with on holiday. The deceased would act oddly, for example, claiming that a ring of hers had been stolen when in fact it was still on her finger.
[11] The witness and her husband collected the deceased’s pension from the post office for her. By 2003 – 2004 the witness’ husband had indicated that all the pension money should not be given to the deceased as she was treating it like paper and throwing it into a bin. The witness said that after the death of her husband in 2006, she herself continued to visit the deceased and her sister once or twice a week. She said that the deceased’s mental condition was getting worse, as time went on. Mrs Nelson’s own mother developed dementia and latterly she found it more difficult, as a result, to visit the deceased. When the deceased ultimately was admitted to a nursing home, the witness visited her a couple of times. She was not informed, however, of the deceased’s death until two or three weeks after the death and discovered this from a friend of her deceased husband. The witness’ evidence was that after her husband’s death, when she visited the deceased, the condition of the deceased’s mind appeared to be getting worse and she was of the view that by 2007 the deceased was suffering from some form of dementia and that “there had been every sign of that before”. She was of the view, indeed, that the deceased’s mental condition had begun to deteriorate from about 2001. The deceased, and her sister, had enjoyed placing bets on racehorses every day, the betting slips being collected by the witness and/or her husband. Latterly the deceased could not understand the racing lists. On family occasions the deceased would appear to be fine but at other times “she would talk a lot of nonsense”. The witness said that she had no knowledge of any will executed by the deceased and had only on the morning of her coming to court to give evidence learned that the pursuer had been appointed to be the deceased’s executrix. The witness confirmed...
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