Man whose late brother left estate to carer fails to have will reduced by Sheriff Appeal Court

John Thompson, the pursuer and appellant, originally raised the action seeking production and reduction of a will executed by his late brother, Samuel Thompson, against Mary Hopkinson, who was the principal beneficiary and residuary legatee in terms of the will. The deceased’s previous will had named the appellant as his principal beneficiary.

The appeal was heard by Sheriff Principal Aisha Anwar. The appellant was represented by Thompson, solicitor, and the respondent by Cheyne, advocate.

Agreement between brothers

The respondent was a care worker employed by the local authority to provide care services to the deceased and did so from 2012 to his death on 26 February 2019. On 27 November 2018, the deceased executed a will under which she was the principal beneficiary. The appellant contended that this will was impetrated by facility and circumvention.

In a prior will dated 26 April 2012, the deceased had left his entire estate, with the exception of his home, to the appellant. The appellant contended that this was done as part of a binding contractual agreement between them under which they each made the other the principal beneficiary in their respective wills. Wills executed by the appellant in 2012 and 2016 had provided for his entire estate to be left to the deceased.

At the diet of proof, the appellant led evidence from himself, a friend of the deceased and a consultant psychiatrist. The respondent also gave evidence and led evidence from Mr Steven, the solicitor who had drafted and executed the will. Objection was taken to Mr Steven’s evidence on the basis that there was no fair notice and no Record for such evidence, however the sheriff found it to be admissible.

Following proof, the sheriff granted decree of absolvitor in favour of the respondent. He found that the respondent and the deceased had become friends, and that he had remained mentally sound when he made the 2018 will. The sheriff also rejected the appellant’s breach of contract claim, holding that their agreement was not a binding contract nor was it legally enforceable. 

It was submitted that the sheriff had erred in admitting the evidence of Mr Steven, in failing to accept the unchallenged evidence of the appellant, and in failing to infer that circumvention had taken place. The respondent’s averments were often lacking in candour, and her case amounted to no more than a bare denial that the deceased was facile at the time of signing the will.  

In response, the respondent submitted that the appellant had failed to discharge the onus of proof upon him to establish that the deceased was facile when he made the will. There were averments of the deceased’s physical difficulties but none in relation to the deceased’s mental capacity beyond a bold assertion that he was facile. The appellant had simply failed to aver the circumstances which might allow the court to infer facility. 

Bold assertions 

In her opinion, Sheriff Principal Anwar said of the issue of facility: “While the appellant sets out the physical ailments suffered by the deceased, the averments regarding facility are bold assertions and bare statements without any specification, beyond a reference to ‘confusion’ on the part of the deceased.” 

She continued: “It might have been entirely appropriate for these averments to have been met with a simple denial. They are not. The respondent instead avers that the deceased was not facile. That averment may be expressed in the negative however it is clearly a positive statement of fact and one which the respondent offered to prove.” 

On whether the respondent’s averments could be considered implied admissions, she said: “The consequences of pleadings which lack candour are identified as being a risk of an adverse finding of expenses, severe criticism of the pleader and a risk that the defences will be undermined and credibility prejudiced. Indeed, in Gray v Boyd (1996), the Inner House disapproved of any practice which may have developed of treating a general denial as amounting to an implied admission, merely because there had been a lack of candour.” 

Considering whether the sheriff ought to have accepted the unchallenged evidence of the appellant, Sheriff Principal Anwar said: “Unchallenged evidence nevertheless requires to be examined and assessed; the onus lies on the pursuer to prove his or her case on a balance of probabilities.” 

She explained further: “The sheriff [had] not rejected the appellant’s evidence in relation to the central issue of facility as lacking in credibility or reliability, but rather concluded that the evidence did not advance the appellant’s case.” 

Addressing whether there was a binding contract between the two brothers, she said: “The sheriff explains clearly that the only witness who spoke to this was the appellant and his evidence did not support the formation of a binding contract. Indeed, he noted the appellant’s concession that there had been nothing to prevent the appellant from changing his own will, thereby indicating the absence of any prior agreement not to do so.” 

Sheriff Principal Anwar concluded: “This was not a case in which the court was faced with a stark choice between irreconcilable accounts such that the credibility and reliability of the parties’ testimony was an issue of primary importance. The evidence led on behalf of the appellant was inadequate. The sheriff based his decision upon the poor nature and quality of the evidence presented on behalf of the appellant and the compelling nature of Mr Steven’s evidence. The sheriff had been entitled to do so, his assessment was supported by the evidence and could not be described as being plainly wrong.” 

For these reasons, the appeal was refused.