Disposition reduced as deceased ‘did not have the necessary capacity’

A judge in the Court of Session ruled that the deceased “did not have the necessary capacity” to grant the disposition because she was suffering from “advanced dementia” at the time.

Lord Clarke heard that the pursuer Sheila Ritchie was seeking reduction of a disposition granted by her late aunt Mary Gallacher of subjects at 24 Eaglesham Road, Clarkston, Glasgow in favour of the defender James Nelson and others, dated 2 July 2007.

The pursuer, as the executrix-dative of her deceased aunt, who died on 31 March 2011 aged 96, claimed that the disposition fell 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 it fell to be reduced having been obtained through “facility and circumvention”, while the defender maintained that she had the necessary legal capacity to grant that deed.

It appeared clear from the evidence that the family saw themselves 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 pursuer accepted that she saw the deceased only very infrequently over the years, and that she had last seen the deceased in 2001 at her own daughter’s wedding.

She was not informed by the defender that the deceased had died, and only received that news some time after the funeral from a care worker who had worked at the nursing home where she died.

The pursuer understood that the defender was claiming that he had inherited the deceased’s property, but she did not consider that that was right as she was unaware of the deceased having left any will.

She sought appointment as executrix-dative, which was confirmed in March 2011, and her solicitor made enquiries which indicated that the deceased had been suffering from dementia during the last year or so, prior to her death.

On receipt of that information she instructed the present proceedings, in which counsel for the pursuer sought decree of reduction of the disposition on two separate grounds: firstly, that the deceased was “incapax” at the relevant date of the granting of the disposition, i.e. 2 July 2007; and secondly that the deed was “invalid” having been brought about by facility and circumvention.

However, the defender maintained that he visited his mother and her sister, the deceased, on a daily basis and that he had understood that as a result of a will executed by the deceased on 10 November 2004 - in terms of which he was the deceased’s executor - the subjects would, after the death of his uncle, transmit to his mother, the deceased’s sister.

In about March/April 2007 the defender telephoned the family solicitor, Hugh Kennedy, and told the lawyer that his aunt wanted him to come to her home to update the sisters’ wills.

The defender claimed he then subsequently spoke with the deceased who said she was leaving the home to the survivor of herself, his mother and himself, and that having taken Mr Kennedy’s advice, he would draw up a disposition of the subjects.

However, the disposition remained at the deceased’s home for a number of weeks without having been signed and it was only in July 2007, after the defender took his mother and the deceased on a day trip to Largs and they returned to his home with his mother and the deceased, his wife, son, daughter and her boyfriend when the deceased signed the disposition.

When asked in examination-in-chief how the deceased’s mental faculties seemed to be at this time, the defender said that “she was fine, she was very clear about what she was doing”.

But the court heard evidence of two medical witnesses Dr Damian Lynch and Dr Rachael Clarke, to the effect that it was likely that the deceased was suffering from “advanced dementia” at the time of the granting of the disposition, and that it was “highly unlikely” that she would have had the necessary capacity to grant it.

On the other side, the defender’s medical witness, Dr Routh, seemed to approach the matter on the basis of a “presumption of capacity” which he felt “could not be displaced because of the lack of sufficient evidential material”.

Both the defender and his daughter gave evidence that the deceased had intended to change her will, but there was a problem for the defenders in relation to the evidence regarding the preparation of a disposition.

The family solicitor, Mr Kennedy, was now deceased and there was no evidence as to what advice he gave regarding preparation of the disposition, while the file even raised a doubt as to who he considered his client to be, meaning no weight was attached to his affidavit.

The judge ruled that the deceased lacked the mental capacity to grant the disposition and accordingly granted decree of reduction.

In a written opinion, Lord Clarke said: “The medical evidence given by the pursuer’s medical witnesses, I found to be compelling and persuasive both in content and in the manner of its presentation. It seemed to me that they set out a reasonable basis, having regard to all the material before them, for drawing the inference, that standing the agreed state of advanced dementia the deceased was suffering from in October 2007, the appropriate mental capacity in July 2007 for granting a disposition of the kind with which the present proceedings are concerned, did not exist.

“The position of Dr Lynch and Dr Clarke, in my opinion, was supported or confirmed by other evidence before the court which appears to me to be indicative of the deceased having, for some time prior to 2 July 2007, been suffering from significant mental decline. That evidence itself seems to me to contradict, and put a serious question mark over, the reliability and/or credibility of the evidence of the defender himself, his wife, daughter and son.”

He added: “In all the foregoing circumstances I have reached the clear conclusion that, on the evidence, the pursuer has established her case that on the balance of probabilities, the deceased, on 2 July 2007, did not have the necessary capacity to grant the disposition.”

It was therefore unnecessary to deal with the case based on facility and circumvention, but the judge held that the circumstances leading up to the deceased’s execution of the disposition amounted to establishing a “deceit or fraud”.