Analysis
The pursuer and appellant (the appellant) brought proceedings for the production and reduction of a will executed by his late brother, Samuel Thompson, on 27 November 2018. Samuel Thompson had subsequently died on 26 February 2019.
The defendant and respondent (the respondent) was the principal beneficiary and residuary legatee in terms of the 27 November 2018 will. The respondent had provided care services to the deceased from 2012 until his death. In a prior will dated 26 April 2012 the deceased left his entire estate, save for his home, to the appellant.
The appellant sought reduction of the will on the basis that it was impetrated by facility and circumvention. In the alternative the appellant sought damages arising from a breach of contract. He contended that he and the deceased had entered into a contract in 2012 that each would make the other the principal beneficiary in their respective wills.
Before the sheriff the appellant, a friend of the deceased and a consultant psychiatrist gave evidence for the appellant. The respondent gave evidence and on her behalf evidence was led from Mr Steven, the solicitor who acted on behalf of the deceased in the drafting and execution of the 27 November 2018 will.
The appellant objected to the evidence of Mr Steven on the basis that there was no fair notice and no record for such evidence. The respondent’s averment that the deceased was not facile failed to provide fair notice of Mr Steven’s observations and assessments of the deceased’s mental capacity. It was submitted that the defences ought to be construed as an implied admission. The sheriff found the evidence to be admissible.
The sheriff did not find it established that the deceased was facile when he made the will or that the terms of the will resulted from undue or improper influence or did not express his true intentions. The sheriff also rejected the appellant’s claim based on breach of contract, concluding that the expressions of intent in 2012 made by the deceased and the appellant in relation to their respective wills did not form a binding contract nor was it legally enforceable.
The issues on appeal were:
- 1) whether the sheriff erred in law by failing to imply admissions to the appellant’s case on record;
- 2) whether the sheriff erred in law by finding the evidence of Mr Steven admissible in circumstances where there was no foundation on record for the evidence and no fair notice, and where the respondent’s pleadings lacked candour;
- 3) whether the sheriff erred in holding that the appellant could not object to a lack of fair notice after the record had closed;
- 4) whether the sheriff erred in law in failing to accept the unchallenged evidence of the appellant – the appellant argued that the sheriff gave no justifiable reason to reject this evidence;
- 5) whether the sheriff erred in failing to infer that circumvention had taken place – the appellant argued that the sheriff had failed to place appropriate weight on the evidence of the appellant, the timing of the change of will and the unexplained nature of the legacies; and
- 6) whether the sheriff erred in holding that the respondent was a credible and reliable witness.
Held:
As a general rule of pleadings, every statement of fact by one party must be answered by the other party. Averments which were not explicit admissions would not be construed as such. Admissions could be implied in certain situations. The appellant had relied on the principle that where a statement of fact made by a party was within the knowledge of the other party, then, if that other party does not deny the statement of fact, they are deemed to admit it. In this case the respondent had denied it both by a general denial and a positive statement of fact that the deceased was not facile. Far from constituting an implied admission, the respondent offered to prove the contrary. There was no obligation on the respondent to plead a specific period during which the deceased was not facile.
One averment that the will had left legacies to members of the respondent’s family had been denied by the respondent in her pleading, but during her evidence she had identified several beneficiaries related to her. The appellant’s argument that these should be treated as implied admissions on the basis that her pleading was uncandid was rejected. The consequences of pleadings which lacked candour were at risk of an adverse finding of expenses, severe criticism and that defences would be undermined and credibility prejudiced. Lack of candour was not a basis for treating a general denial as an implied admission. Gray v Boyd [1996] applied.
The respondent’s positive averment that the respondent was not facile and that the will had been made in the presence of an independent solicitor was fair notice of the evidence that would be elicited from the solicitor. The sheriff had been correct to conclude that the defences were not skeletal in the light of such statements in the respondent’s answer.
It was well established that where a trial judge had the advantage of having seen and heard the witness, an appellate court should only interfere with the findings of the trial judge if they were plainly wrong or unsupported by evidence. It put matters too simply to state that the appellant’s evidence had been unchallenged and not contradicted in many material respects. The onus lay on the pursuer to prove their case on the balance of probabilities. The sheriff concluded that the appellant’s evidence did not advance his case. There was no basis for concluding that the sheriff had been plainly wrong.
The sheriff had correctly noted that there was no direct evidence of circumvention. All of the direct evidence pointed to the will being a true reflection of the deceased’s testamentary intention. There was insufficient circumstantial evidence from which the sheriff could infer circumvention.
It was unfortunate that the sheriff did not make any assessment of the respondent’s evidence. However, this was not a case in which the court was faced with a stark choice between irreconcilable accounts where credibility and reliability of testimony was of primary importance. 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 was entitled to do so and his decision could not be described as plainly wrong.
Appeal dismissed.
JUDGMENT SHERIFF PRINCIPAL A Y ANWAR: Introduction [1] The pursuer and appellant (hereinafter ‘the appellant’) raised proceedings seeking production and reduction of a will executed by his late brother, Samuel Thompson on 27 November 2018 (the will). Samuel Thompson died on 26 February 2019. [2] The defender and respondent (the respondent) is the principal beneficiary …Continue reading "Thompson v Hopkinson [2021] WTLR 1521"