Edinburgh sheriff rules writing on back of envelope did not alter terms of Irish citizen’s will

Christina Cummins and Bridget Tierney, the nieces of the late Mary Downey, applied to the Commissary Court under Section 4(1)(a) of the Requirements of Writing (Scotland) Act 1995 for confirmation that the informal writing altered the terms of the will. The effect of the provisions would have been to disinherit a brother of the deceased and his son.

The application was considered by Sheriff Thomas Welsh QC in Edinburgh Sheriff Court. The applicants were represented by Rattray, solicitor. The application was not opposed, although the surviving beneficiary who stood to be disinherited, Patrick Downey Jr, attended the hearing. It was not disputed that the original will was valid in terms of both Scots and Irish law.

Testamentary intent

The deceased, who was born in the Republic of Ireland in 1926, came to Scotland as an adult and spent her career teaching in Glasgow, in the process acquiring a Scottish domicile before moving back to Ireland in 2017. She executed her will in December 2012 in Glasgow, witnessed by her solicitor. At the time of her death, the deceased was domiciled in Ireland.

Shortly after her death, one of the applicants discovered a copy of her will in the original envelope it was sent in by her solicitor. On the back of the envelope were some words written and subscribed by the deceased under the heading “January 2015”, including a section of words including the word “Alterations” underlined.

To the right of that word, the words “brother Pat’s 4” were circled, with “to Stephen (nephew)” afterwards. Underneath that, the words “nephew Patrick’s 4” were circled with the words “to Paul (nephew)” following. The applicants submitted that these writings constituted an alteration of the terms of the original will but conceded that extrinsic evidence would be required to prove testamentary intent on the part of the deceased.

Counsel for the applicants submitted that Ms Downey had the necessary mental capacity for the writing to have testamentary effect. Further, the envelope had been signed, dated and securely stored along with her other personal papers she had taken with her from Glasgow, and case law indicated that this was sufficient to identify the document as part of the will.

Cart before the horses

In his decision, Sheriff Welsh began by analysing the storage and form of the writings, saying: “Everything that can be said of the Informal Writing applies mutatis mutandis to her copy of the 2012 will, which was inside the A4 envelope. There is no evidence Miss Downey went ‘to the trouble of ensuring’ that the Informal Writing was taken to Cashel from Glasgow unless one assumes that she did.”

He continued: “If one assumes Miss Downey intended to disinherit her late brother and his son then the meaning of the informal writing is obvious. That logical fallacy (petitio principii) is, in my opinion an easy mistake to make in a case like this. However, it puts the ‘Informal Writing’ cart before the ‘testamentary intent’ horses.”

On the intentions of the deceased, the sheriff further noted: “I was troubled by the fact that, if alteration of the will was intended in January 2015, then why was a letter not despatched to agents to convey that intention? On refection, I concluded that even analysing the known facts, in this way, simply results in speculation.”

Analysing the wording used in the writings, he added: “The intention of the writer of the Informal Writing is not clear from the words used. There is, to use contractual language, no operative clause, which clearly and succinctly informs the reader what the writer’s intention is and what is to be done (unless one assumes testamentary intent when it is obvious what the Informal Writing means). Put another way, testamentary language is not used.”

Sheriff Welsh concluded: “There are errors in the notation which taken with the flawed logic relating to the provenance of the Informal Writing fail to satisfy me that the suggestion that Miss Downey’s settled testamentary intent was to alter her 2012 will, is proved, on a balance of probabilities. In my opinion, the evidence and arguments relied on in the application fail to satisfy the legal burden required to alter a probative testamentary deed, duly executed by the testatrix.”

The application under the 1995 Act was therefore refused.