Outer House rejects challenge to will made by seriously ill man 20 minutes after bedbound wedding and two days before death

About this case:

• Citation:
  [2024] CSOH 18
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Woolman

The first defender, Thorntons Trustees Ltd, relied on the eyewitness evidence of three people who witnessed the deceased sign the new will. Lee Barclay, the pursuer and eldest son of the deceased, invited the court to dismiss this evidence as unreliable. The first defender did not participate in the proof, with evidence being led by the deceased’s wife and previous long-term partner, Mandy White.

The case was heard by Lord Woolman, with Deans, advocate, appearing for the pursuer and Welsh, advocate, for the defender.

Signed without assistance

The pursuer’s father, the late William Barclay, died on 3 June 2018 after a period of serious illness. In 2004, the pursuer had emigrated to Australia where he worked as a teacher, and he had last seen his father three months before his death. He had planned to return to Scotland to say a final goodbye in late June 2018.

Two days before his death, the deceased married Ms White in his Edinburgh flat. About 20 minutes after the wedding, he executed a new will which altered the way the residue of his estate would be split from 50:50 between Ms White and the pursuer to 75:25 in favour of Ms White. Under both wills, Ms White also received a liferent of the deceased’s flat.

Mr Barclay did not recognise his father’s signatures on the 2018 will, and instructed two forensic document examiners to investigate whether the signatures were forged. Their reports supported this proposition, while another report instructed by Ms White concluded there was insufficient material to reach a conclusion on authenticity. There was no challenge to the signature of the deceased on the marriage schedule he signed on the same day, which was in a similar style to the signatures found on the new will.

Apart from Ms White, the other witnesses to the will were William and Anne Tempany, who had been close friends of the deceased for many years and attended the wedding ceremony along with another couple. They testified that the deceased signed the will without assistance after it was put on a tray on his lap. After the deceased’s death, the pursuer contacted Mr Tempany wondering if his father had been upset with him, and he was reassured that the deceased had signed the will while lying in bed.

Counsel for the pursuer invited the court to reject the eyewitness evidence as unreliable, noting discrepancies in Ms White’s account regarding the nature of the deceased’s bed and the speed and fluency with which the deceased signed the will. It was also submitted that Ms White had lied to the pursuer when he asked her if he had known about the changes to the will. Her position was that the deceased had told her he would mention it to the pursuer when he next visited.

Measured and truthful

In his decision, Lord Woolman said of the alleged discrepancies in Ms White’s evidence: “None of these discrepancies, taken either individually or collectively, are of any moment. They are precisely the type of variations in recall that one would expect. I attach no importance to any supposed difference in speed. Ms White’s evidence was one of impression, not measurement.”

He said more generally of the eyewitness accounts: “It is always difficult to gauge credibility solely on the basis of demeanour. I saw nothing, however, in their appearance and presentation in the witness box to indicate that they were dissembling or colluding. Rather, they each appeared to me to be measured and truthful in their testimony. Each of them was clear that the deceased had signed the will. Their accounts chimed with each other. Mr and Mrs Tempany stood to gain nothing by dishonesty.”

Turning to the opinion evidence from the forensic examiners, Lord Woolman added: “Counsel for the pursuer submitted that [the defender’s expert] Mr Cosslett was unimpressive, precisely because he was unable to offer an opinion. I disagree. It is crucial that expert witnesses identify situations where they cannot reach a conclusion. I prefer his approach in the circumstances of this case.”

He concluded: “Taken at its highest, the expert evidence of Dr Gillies and Mrs Briggs only offers qualified support to the pursuer’s case. It does not persuade me that the signatures are not authentic. I accept the evidence of the eyewitnesses that the deceased signed the will unaided. Accordingly, the pursuer’s case fails.”