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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gordon's Executor v Macqueen [1907] ScotCS CSIH_5 (11 January 1907)
Cite as: 1907 SC 373, (1907) 14 SLT 651, [1907] ScotCS CSIH_5

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11 January 1907

Gordon's Executor

Lord Stormonth-Darling.—The Lord Ordinary has disposed of this case on the footing that the document in question operates a revocation of the only previous will which was in the possession of the deceased's law-agent at the time of her death. That was a particularly reasonable will—written, no doubt, a long time before the will which was begun in 1865 and finished in 1879—but reasonable in the sense that it was prepared by her legal adviser at the time, that it was properly witnessed by responsible people, and that it disposed of her whole estate in a rational way. So far as is known the testatrix was not at the time it was made, when she was only thirty-one years of age, suffering from any decay of memory, and there is nothing in the deed itself to suggest that she was then suffering either bodily or mentally. This will therefore, on the face of it, is entitled to all respect and attention. The testatrix survived till 1904, and then she died possessed of nearly £8000. The only later document which she left is one which is not easy to decipher. It is holograph, and begins thus:—“Having made two wills when suffering from decay of memory, both of which are registered in the Books of Session in Edinburgh, I do hereby cancel them, and in place of which I make the following statement of my wishes.” Therefore we begin with this: that she intended to cancel two wills which she had made when suffering from decay of memory, but she omits entirely to make any new disposition of her property, except that she wishes her affairs to be wound up by her legal adviser at the period of her decease. She also says that both wills are registered in the Books of Session at Edinburgh. Is there any will corresponding to that description? There are no such wills to be found. Therefore we cannot say what are the wills which she made when she was suffering from decay of memory and which are registered in the Books of Council and Session. The only will of which we know is that of 1852, which is not registered, and bears no trace on its face of having been made when she was suffering from decay of memory. That being so, there is nothing to warrant the conclusion that either of these wills is the one of 1852. The case seems to fall under the rule laid down in the well-known case of Stoddart v. Grant, that “the onus of proving the revocation of a prior by subsequent testamentary instruments is on those who assert the revocation.” It is not to be inferred by mere conjecture, but by a comparison of the documents, clause by clause; and if the will said to be revoked is not named or clearly identified, it must be taken as wholly or partially regulating the succession, so far as not inconsistent with subsequent instruments.

Lord Low.—I am of the same opinion. I take it that there is no dispute as to the rule of law which is applicable. It is this—that a subsequent will does not operate to revoke a prior will unless it does so expressly, or the two are incapable of standing together either in whole or in part. It is said that the holograph will in this case contains an express revocation of the will of 1852. If that is so, there is, of course, an end of the question, although the testatrix has not disposed of her estate at all, but has died intestate. The words of revocation in the holograph will are these:—“Having made two wills when suffering from decay of memory, both of which are registered in the Books of Session in Edinburgh, I do hereby cancel them, and in place of which I make the following statement of my wishes.” Now, the two wills which are thereby cancelled are specially described as having been made when the testatrix was suffering from decay of memory, which, I think, may be read as meaning that her mind was at the time in such a state that she was not truly capable of making a will. It was laid down in Stoddart v. Grant that the onus is on the party who maintains that the will is revoked to prove that it is so, and therefore the

onus is here on the party who maintains that one of the wills revoked by the holograph writing was the will of 1852. There is no evidence that when the will of 1852 was made the testatrix was suffering from decay of memory, or was incapable of making a will. One might even go further and say that the inference is the other way, because the terms of the will appear to be entirely fair and rational; it was drawn up by a member of the legal profession, and the witnesses appear to have been the doctor of the testatrix and the minister of her church. There is a strong presumption, therefore, that the testatrix was not at that time suffering from any mental incapacity. There is accordingly no evidence in my opinion that the will of 1852 was one of those which was expressly cancelled.

That leaves the question whether the two wills are incapable of standing together. The Lord Ordinary answers that question in the affirmative. He reads the holograph will as one “in which the testatrix deliberately stated her intention of making no provision for the disposal of her free estate after her death.” I agree that if that is a correct description of what the holograph will does, it would revoke the will of 1852. If the testatrix had said, “I prefer not to dispose of my estate, but to leave my succession to the operation of law,” such a declaration would receive effect; but, with very great deference to the Lord Ordinary, whose opinions are always entitled to great respect, I am unable to construe the holograph will in any such way.

Apparently the testatrix intended to make a testamentary disposition of her means, because she says that “in place of” the cancelled wills she makes “the following statement of my wishes.” In the statement which follows, however, she makes no testamentary disposition. She does not even—as I read the will—invoke the law of intestate succession. She merely says that she retains in her own name such money as she requires; that she wishes to remember her friends but has little to do it with; and then she commends herself to the care of the Almighty. Perhaps if the cancelled wills had been in existence they might have thrown some light upon what the testatrix had in her mind, but reading what purports to be a statement of her wishes alone, I cannot spell out of it any testamentary intention at all. The Lord Ordinary founds chiefly upon the words—“I wish to rember my friends but have little to do it with,” which, he says, shew that the testatrix considered her estate to be of such small amount as not to require to be specially bequeathed. That may have been what she meant, but it may not have been so. It seems to me to be impossible to say what she had in her mind when she said she wished to remember her friends, or to read what she said as amounting to a declaration that she did not intend to dispose of her estate at her death, but desired to leave it to the operation of the law of intestacy.

In regard to the last clause in the will it may perhaps be read as the nomination of an executor, but even in that case, although the executor so nominated might supersede the trustees appointed in the will of 1852, that will otherwise would not be thereby revoked. I doubt, however, whether the clause was intended to do more than provide that the gentleman who was her legal adviser at her death should be the law-agent employed in winding up her affairs.

Lord Justice-Clerk.—I am of the same opinion. It is for those who maintain that the later writing of the testator cancels the earlier will of 1852 to shew that it does so. I think they have failed to do so. The will of 1852 in all its aspects is inconsistent with the idea that it was made when suffering from decay of memory, or was one of the two wills revoked, and there is no revocation of all wills. The latter part of the document under construction is not testamentary, but merely expresses a desire that her agent at her death should have the winding-up of her affairs.

LORD KYLLACHY was absent.

[1907] SC 373

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