Weir v Grace
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1899 |
| Docket Number | No. 4. |
| Date | 28 November 1899 |
| Court | House of Lords |
Ld. Chancellor(Halsbury), Lord Macnaghten, Ld. Brampton, Ld. Robertson.
Agent and Client—Undue Influence—Testament—Onus.—
A, a lady, left the residue of her estate to B, her ordinary law-agent, by a will prepared by another law-agent. A's next of kin brought an action against B to reduce the will on the ground of undue influence on his part. The following facts were proved:—A and her sister many years before their death delivered to B a letter stating their desire to leave to him the residue of their respective estates. He declined to act in such a matter, and returned the letter advising them to leave their money to their relatives, but upon their adhering to their intention and naming another agent as suitable to prepare a formal will he called upon that agent and told him their wishes. That agent prepared for each of them a will by which she gave her estate to the other, and failing the other to B. A's sister having died, A from time to time made alterations on her will, but left the gift of residue unaltered. Her will was never in the custody of B. It was proved that B was an old family friend for whom the testators entertained a high regard. A lived for sixteen years after the making of the will.
Held (in aff. judgment of Second Division) that the will having been duly executed and the sanity and testamentary capacity of the testatrix having been admitted, the onus lay upon the persons challenging the will on the ground of undue influence to prove fraud or coercion, and that the pursuers had failed to do so.
Opinion (per Lord Robertson) that if the will had been prepared and carried through to execution by B the onus would have been upon him to prove that the will was the volition of the testatrix.
(In the Court of Session 13th December 1898, 1 F. p. 253.)
The Pursuers appealed.
Lord Chancellor.—I have not been able to entertain any doubt in this case that the judgment of the Lord Ordinary was correct. It appears to me that one of the difficulties under which the very learned and able counsel who has been arguing this case before your Lordships on the part of the appellants has laboured is that he has not been able to propound the simple proposition upon which he asks your Lordships to reverse the judgment of the Court below. Although I have invited him to do so once or twice, I observe that he has always repeated his proposition in language which confuses two totally different issues, namely, first, Was this in fact the will of a sane and capable testatrix; was it executed by her? That is one issue. The second issue, and, as I say, a totally different one, is, Was it or was it not induced by the person by whom it was practically made as it is alleged (of course I do not concur in that view), so that although it was the act of a sane and capable testatrix, it was unduly influenced by the person for whose benefit it was made? These are two totally different issues, and they ought not to be confused together—they must be treated differently.
With respect to the first issue, of course it is the duty of the person propounding a will to shew that it is the will of the testator or testatrix. That includes its execution and the sanity and testamentary capacity of the person who has executed it. If doubt is left on either of these propositions the ordinary consequence of law follows, namely, that the person whose duty it is to establish the proposition has failed to establish it, and therefore the judgment would be against him.
But with respect to the other and totally different issue, it rests upon those who dispute the will to shew that although by the hypothesis it is the will of the testatrix, and although by the hypothesis the testatrix was in a condition in which she could properly exercise volition, yet that volition has not been exercised, and the actual execution of the will being admitted, and the fact of the general capacity of the testatrix to execute it being admitted, there is an additional fact, namely, fraud or coercion, under which the thing was done. It appears to me that the whole difficulty of the argument of the learned counsel is that he has not put his finger upon anything that shews that the first issue has not been established, and that then when it comes to his turn to establish the other issue, he has been wholly unable to point to facts upon which he can rely to establish it. The question of what is undue influence has been before your Lordships' House, and although that, like every question of this sort, has to be judged of by the circumstances of the particular case with which the learned Judges in the Court below or your Lordships are dealing, yet it appears to me that Lord Cranworth gives a good general exposition of what the law is on the subject, which it is worth while to quote, because some propositions have been advanced before your Lordships to which I at all events could not assent, and which I think could not be assented to consistently with the judgment of this House, to which I refer, namely, in the case of Boyse v. Rossborough.1 Lord Cranworth says this—‘The difficulty of deciding such a question arises from the difficulty of defining with distinctness what is undue influence. In a popular sense we often speak of a person exercising undue influence over another...
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