Edinburgh sheriff reduces 2019 will of ill woman making brother who forcibly moved into her house her sole beneficiary

About this case:

• Citation:
  [2023] SC EDIN 38
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Dickson

Pursuer Graham Somerville, the nephew of the late Josephine Margaret Allan, argued that the deceased had been pressured into changing her will by defender Alasdair Allan, the late Ms Allan’s brother, during a period of ill health. The defender accepted that the deceased was in poor health when the 2019 will was signed but attributed the changes between the wills to a change in her attitude towards him.

The case was heard by Sheriff Christopher Dickson. Macleod, advocate, appeared for the pursuer and Wilson, solicitor, for the defender.

Factually incorrect

Prior to her death, the deceased had a close relationship with the pursuer and his partner, with whom she bonded due to their shared love of animals. On 27 November 2018 she validly executed a will appointing the pursuer as sole executor and giving him a residuary legacy including her property in Edinburgh. In April 2019 the defender, who had recently repaired his relationship with the deceased, moved into her house and began to create a negative atmosphere when the pursuer and his partner visited once a week. The deceased did not want the defender in her house but did not like confrontation and so put up with him living there.

In May 2019 the deceased was diagnosed with declining renal function and heart failure. Her condition deteriorated over the course of the summer due to worsening anxiety about her condition and by the time of her discharge had begun to express paranoid and delusional behaviour. In or around the beginning of August 2019 the defender prepared a new will on his computer for the deceased which appointed him the sole beneficiary of her estate, which she signed in the presence of a witness, Mr White, who had not seen part of the document.

When later asked by her solicitor why she had made such changes to her will, the deceased replied that the pursuer had not visited her since 2018 when he found out he was to benefit from the 2018 will, even though this was factually incorrect. The pursuer challenged the validity of the 2019 will on the grounds that the deceased lacked testamentary capacity when she made that will and undue influence on the part of the defender.

It was submitted for the pursuer that the evidence demonstrated that his close relationship with the deceased did not change, and that she was in a state of cognitive decline when the 2019 will was signed. The 2019 will was unheralded, signed without the benefit of independent advice, and was the result of pressure from the defender. For the defender it was submitted that greater evidential weight ought to be attached to the persons that witnessed the signing of the 2019 will and at no point did the evidence suggest that the will did not accurate express what the deceased wanted.

Weak or pliable

In his decision, Sheriff Dickson said of the deceased’s capacity: “The 2019 will was significantly different from the 2018 will and was prepared by the defender, who was the sole executor and beneficiary under it. It was also made against the background of the deceased volunteering to [a doctor] at some point between July and 20 August 2019 that she was bequeathing her estate to the pursuer and making similar comments to the pursuer and Janette in the months before her death. In such circumstances I considered that content of the 2019 will was suspicious and unheralded and merited a more detailed examination of the circumstances in which it was made.”

He continued: “I considered that the deceased did not meet stage 4 of the 4-stage test set out in the case of Banks v Goodfellow (1869) when she made the 2019 will and did not have testamentary capacity when she made the 2019 will on 11 August 2019. As the burden of proving testamentary capacity lies on the person seeking to enforce the will, I have found, in all the circumstances of the case, that the defender has failed to satisfy that burden.”

Considering whether the defender unduly influenced the deceased, he said: “The defender contended that the deceased was strong-willed and the pursuer accepted that she was. I considered that that contention was also supported, to some extent, by the fact that the deceased did resist the advice of medical professionals on 5 August 2019 to remain in hospital. However, the other evidence showed that the deceased was not strong-willed when it came to the defender.”

He went on to add: “The evidence, which I have accepted, showed that the deceased was scared of the defender and wanted the defender to move out of her house. However, she did not like confrontation and, as a result, put up with him living in her house. I considered that if the deceased did not lack testamentary capacity on 11 August 2019, her mind was so weak or pliable that she was unlikely to be able to resist pressure applied by the defender.”

The sheriff concluded: “The 2019 will clearly benefited the defender and the deceased did not obtain any independent advice or assistance before the 2019 will was made. When I considered the whole circumstances of the case and, in particular the problematic relationship the deceased had with the defender and her recent expressions of her testamentary intentions, I considered that the whole circumstances of the case justified the inference being drawn that the defender had abused the relationship of trust that he had with the deceased.”

Accordingly, the sheriff sustained the pursuer’s pleas for reduction of the 2019 will.