Appeal Sheriff allows amendment in succession proceedings seeking to establish tenor of lost codicil letter

About this case:

• Citation:
  [2022] SAC (Civ) 28
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Andrew Cubie

Elizabeth Skelton, the first defender in an action raised by pursuer John Carswell, challenged the sheriff’s decision and argued that summary decree of absolvitor ought to have been granted, on the basis that the course of action taken by Mr Carswell was not a competent route for him to take. The second and third defenders, Mark and David Carswell, did not participate in the appeal.

The appeal was heard by Appeal Sheriff Andrew Cubie. Upson, solicitor, appeared for the appellant and Whyte, solicitor, for the respondent.

Properly executed

The parties were the children of the late John Carswell, who died on 15 October 2017. In an action for declarator the pursuer sought to prove the tenor of a missing document that he claimed was a codicil to Mr Carswell’s will that itself was short of the formalities imposed on such documents by the Requirements of Writing (Scotland) Act 1995. It was said that the letter, if it had testamentary effect, would have consequences for the division of the estate between the parties.

On 14 March 2022, Mr Carswell sought to amend the pleadings by the addition of a crave to prove the tenor of the letter. This motion was opposed and summary decree of absolvitor was sought by the first defender and appellant. However, the sheriff allowed the minute of amendment to be received and refused the motion for summary decree.

It was the appellant’s position that, in the absence of the principal document, there was no traditional document lodged in accordance with the 1995 Act, and thus proof of the tenor of the document could not elevate that document into the status of a traditional document. Accordingly, there was no prospect of proving a testamentary writing because Mr Carswell could not establish that it was properly executed.

In submissions for the respondent, it was argued that the sheriff had legitimately exercised his discretion in allowing the amendment. It could not be the law that a copy letter could not be capable of being a document in terms of the 1995 Act. For this to be the case, the Act would require to set out in very clear terms that such a document was not included in the definition.

Valid and effectual

In his decision, Appeal Sheriff Cubie observed: “The phrase ‘traditional document’ requires to be seen in context; sections 1A and 9A of the 1995 were introduced in to the 1995 Act by the Land Registration etc. (Scotland) Act 2012. Section 1A dealt with ‘traditional documents’ to distinguish them from ‘electronic documents’ as defined by section 9A, that is documents created in an electronic form. It does not of itself form a barrier to the route which Mr Carswell has adopted.”

Noting that each party had misunderstood the effect of proving the tenor, he said: “Mrs Skelton argued that it meant the sheriff’s signature of the document was the signature on the missing document. That is wrong; the document is reconstituted in the interlocutor which will include or at least recreate the original signature details, if any. So the missing document is still ‘signed’ by the original party.”

He continued: “Mr Carswell in contrast submitted that the copy document took the place of the missing document. That is also incorrect. But that copy could be an adminicle of evidence in any application under the 1995 Act. The effect of the decision in James Dunbar & Co v Scottish County Investment Co Ltd (1920) is clear; the extract of the decree becomes as valid and effectual as the deed which has become lost.”

Sheriff Cubie concluded: “One of the ways in which that validity and effectuality are manifest is in the ability to seek to make use of the 1995 Act to establish the document has testamentary effects. I consider that the document if established can be regarded as a traditional document in accordance with section 1A of the 1995 Act. The course adopted by Mr Carswell is not incompetent.”

The appeal was accordingly refused, and the case remitted for further procedure.