Weir v Grace
| Jurisdiction | Scotland |
| Judgment Date | 13 December 1898 |
| Docket Number | No. 46.,No. 113. |
| Date | 13 December 1898 |
| Court | Court of Session |
Lord Kincairney, Lord Justice-Clerk, Lord Young, Lord Trayner.
Process—Proof—Proof or Jury trial—Reduction of will—Agent and client—Undue influence—Judicature Act, 1825 (6 Geo. IV. cap. 120), sec. 28 —Court of Session Act, 1850 (13 and 14 Vict. cap. 36), sec. 49—Evidence (Scotland) Act, 1866 (29 and 30 Vict. cap. 112), sec. 1—Court of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 27.—
The Lord Ordinary before whom a cause depends has now a wide discretion as to whether the cause should be sent to a jury or to proof without a jury, and the Court will not readily interfere with the Lord Ordinary's decision in the exercise of that discretion.
An old lady died in 1897 leaving a settlement dated in 1881, by which she left the bulk of her property to B, a solicitor. The heir-at-law and the next of kin of the testatrix brought an action against B for reduction of the settlement in so far as he took benefit under it. The pursuers averred that B had for many years acted as law-agent, factor, and banker of the testatrix, and gradually ingathered into his hands the whole management of her affairs, and had acquired a dominating influence over her so that from about 1880 till her death she was entirely subject to his influence and advice, and, as he well knew, never acted contrary thereto; that having acquired this dominating influence over her, he abused his position and violated his duty as her law-agent and adviser by inducing her to execute the settlement under reduction in his own favour; and that to avoid the disadvantage of having the settlement drawn by himself or in his own office and at the same time to secure that the testatrix should have no efficient independent advice in the matter, he handed the drawing of the will over to another law-agent nominally, while in reality he retained it entirely in his own hands.
The pursuers proposed issues for the trial of the cause. The defender stated that he did not object to inquiry, but maintained that the inquiry should be by proof without a jury.
The Lord Ordinary disallowed the issues proposed by the pursuers, and allowed a proof.
The pursuers having reclaimed, held that the Lord Ordinary had rightly exercised his discretion in refusing to send the case to a jury.
On 6th December 1897 Alexander Weir, Melbourne, Australia, and Mrs Ann Key, St Andrews, brought an action against Stuart Grace, banker and solicitor, St Andrews, C. S. Grace, W.S. there, and certain other persons, concluding for reduction of (1) a letter dated 5th March 1881, ‘purporting to be written to the said defender’ by Miss Margaret Brown, New Grange House, St Andrews, ‘pretending to embody the testamentary intention of’ Miss Margaret Brown and her sister Miss Ann Brown; (2) a deed of settlement by Miss Margaret Brown, dated 1st April 1881, with relative codicils, dated respectively 15th June 1886 and 6th April 1893, whereby she conveyed her whole property, heritable and moveable, to her sister, Miss Ann Brown, and in the event (which happened) of her sister's predecease, then to the defender Stuart Grace and his heirs, under burden of legacies to certain other persons (who were the defenders in the action other than Stuart Grace and C. S. Grace), and appointed Miss Ann Brown, whom failing, the defender Stuart Grace, whom also failing, the defender C. S. Grace, to be her executor; and (3) testament-testamentar by the Sheriff of Fife and Kinross in favour of the defender Stuart Grace, as executor nominate of Miss Margaret Brown following on the deed of settlement under reduction and dated 7th July 1897; the reduction to be only ‘in so far as regards any right or interest which the defender Stuart Grace, or the defender Charles Stuart Grace, may or can pretend or claim under the said pretended letter and deed of settlement.’
The pursuers averred that Miss Margaret Brown died at New Grange House, near St Andrews, on 15th April 1897 at the age of eighty-four; that the pursuers were her cousins-german and next of kin, and that the pursuer Alexander Weir was her heir in heritage; that the defender Stuart Grace, or his firm of Stuart & C. S. Grace (of which his son, the defender C. S. Grace, was the only other known partner) acted as law-agent or law-agents, factor or factors, and banker or bankers, to Miss Margaret Brown for many years prior and down to her death; that in her repositories after her death there were found the letter and the deed of settlement and codicils under reduction; * that Miss Margaret Brown left property, heritable and moveable, of the aggregate value of £21,600, including the estate of Grange, which had been in her family for many years; and that the defender Stuart Grace had obtained confirmation and had entered into possession of the heritable estate.
The pursuers further averred that Miss Margaret Brown and her sister Miss Ann (who died in 1888) had for many years lived a very secluded life together at New Grange House; that although they were possessed of ample means, their expenditure was most niggardly, and that for many years before their death they had no idea of their own means, and believed themselves to be comparatively poor. (Cond. 10) ‘In matters of business both the ladies were exceedingly simple and inexpert. From the time of their father's death onwards Mr Stuart Grace acted as their law-agent, banker, and factor, and gradually gathered into his own hands the whole management of their affairs, and, from a date prior to 1880, he had a dominating influence over both of the said ladies, which he deliberately set himself to increase, and so increased that, from before 1880 down to the dates of their
respective deaths, they were entirely subject to his influence and advice, and, as he well knew, never acted contrary thereto, or acted independently thereof, except in the most trivial matters. … He also forebore to take any steps to enlighten them as to the true extent of their means, or to disabuse their minds of the impression that they were comparatively poor. … The said defender too, on his frequent visits, set himself assiduously to flatter Miss Margaret Brown (who was very susceptible to flattery), and with such success, that she was quite under the influence of his wishes in regard to the management of her affairs.…’
(Cond. 11) ‘By the said conduct and arts the said defender acquired such influence over the ladies as to be able to induce them to write the letter above quoted. At the date thereof, the said defender was the law-agent and the only adviser of the said ladies, and, being their confidential adviser, and having acquired over the said ladies, in consequence of the trust and confidence they reposed in him as such, a dominating and ascendant influence, which, as he knew, they were unable to resist, he abused his position and violated his duty as such law-agent and adviser, and induced his said client, Miss Margaret Brown, to execute and grant said letter, and his clients, Miss Margaret and Ann Brown, to execute the two settlements after-mentioned for the purpose of securing his own great advantage and the great lesion of his said clients and the pursuers, by obtaining the whole means and estates, heritable and moveable, belonging to both of said ladies. … The foresaid letter of 5th March 1881 is not the spontaneous production of Miss Margaret Brown. She was unlearned and unskilled in her expressions, engaged in written composition seldom and with difficulty, and was utterly ignorant of legal phraseology. The said letter was either written to the dictation of or after a model furnished by defender Stuart Grace.…’
(Cond. 12) ‘On learning that the alleged intentions of the ladies as to their succession had been embodied in said letter, Mr Stuart Grace did not urge upon them the propriety of obtaining independent advice on the matter. Nor did he, in himself advising them as to the making of formal wills, take such steps as were necessary to acquaint them fully as to their means, and to ensure that they had clearly before them all circumstances bearing on the claims of their own relatives in the disposal of their property, and especially of the heritable properties which had been so long in the family. One or other of these courses it was his duty, as their agent, to have followed. Instead of so doing, however, he advised a course in regard to the preparations of said wills which, while avoiding the obvious disadvantage of having them drawn by himself or in his own office, effectually secured that the two old ladies should have no efficient independent advice in the matter.’ (Cond. 13) ‘… Mr Grace wrote to his own Edinburgh correspondents, Messrs Maitland & Lyon, S.S.C. (the sole partner of which firm, Mr Hugh Lyon, S.S.C., was also related to Mr Grace), instructing them to prepare a will for each of the said ladies. Mr Lyon received no other instructions, except verbal instructions from Mr Grace, and immediately prepared two drafts of two settlements, one for Miss Margaret, and one for Miss Ann,’ Then, after detailed averments as to the completion from these drafts of two settlements in practically identical terms mutatis mutandis, the pursuers averred;—(Cond. 15) ‘… Mr Lyon was personally unacquainted with their circumstances, and took no steps to ascertain these, or to discuss with the ladies the propriety of the provisions of their settlements. He took no personal concern in taking instructions for or preparing said deeds. … The whole matter was entrusted by him to clerks acting under directions of Mr Grace.…’ (Cond. 16) ‘Neither Miss Brown nor her sister were ever advised by any neutral person, acting independently of Mr Grace, in regard to the testamentary disposal of their means, and neither had any opportunity of deliberately judging of the matter, free from his influence, and with full appreciation of all the circumstances, as to the extent of their property, &c., which should have been...
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