Factual and Procedural Background
The Testator died on 31 March 2022. He was survived by his spouse and children from two marriages. After a November 2021 terminal cancer diagnosis he chose palliative care and, on 11 February 2022, executed a will leaving the entire residue of his estate to his second spouse. Four adult children from his first marriage (the Plaintiffs) challenged that will after learning of it post mortem, seeking production and reduction on grounds of undue influence and/or facility and circumvention. An earlier 2004 will (found among Company A's files) provided for distribution according to Shariah law and would take effect if the 2022 will were reduced.
The first and second Defendants are senior partners at Company A and confirmed executors; they did not prepare the will. The lawyer who prepared and witnessed the 2022 will was Attorney Monaghan of Company A, assisted by Attorney Shahzad. The third Defendant (the Testator's spouse) did not enter appearance. The action called for a proof before answer at which the court heard oral evidence from the Plaintiffs and several witnesses (including a nurse from The Charity, a social worker, friends of the Testator) and received affidavits. Judge Harrower heard the proof and delivered this opinion. The court sustained a plea-in-law for the first and second Defendants and refused the Plaintiffs' conclusions.
Legal Issues Presented
- Whether the 2022 will should be reduced on the ground of facility and circumvention (i.e. that the Testator was weak/facile and pressured to make the will by acts of circumvention or fraud).
- Whether the 2022 will should be reduced for undue influence (i.e. existence of a dominant relation, trust/confidence, a gratuitous benefit to the grantee, and lack of independent advice).
- Whether, on the facts and evidence, independent legal advice and the circumstances of the will's execution were sufficient to rebut any inference of undue influence or facility and circumvention.
Arguments of the Parties
Plaintiffs' Arguments
- Attorney Whyte (for the Plaintiffs) submitted a circumstantial case built on seven core circumstances: the Testator's age and terminal condition; fluctuating condition; perceived weak willpower; the radical departure from the 2004 will; prior transfers to the spouse; red flags in the will preparation process; and a generally controlling attitude of the spouse.
- The Plaintiffs contended the Testator was in no state to resist influence and that the spouse exerted pressure such that the 2022 will did not reflect the Testator's free volition.
Defendants' Arguments
- Attorney MacLeod (for the first and second Defendants) submitted that the Testator had testamentary capacity, that independent legal advice was given, that the solicitors (Attorney Monaghan and Attorney Shahzad) observed no undue influence, and that the will represented the Testator's true intentions.
- They argued the Plaintiffs' case was circumstantial and that evidence did not support a finding of facility/circumvention or undue influence; the preparatory process and multiple meetings supported validity.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Mackay v Campbell 1967 SC (HL) 53 |
Sets out elements for facility and circumvention: (i) weakness/facility; (ii) pressure by circumvention or fraud; (iii) resulting lesion/harm. |
The court applied these three interrelated factors as the test for facility and circumvention and considered whether they were established on the facts. |
| Pascoe-Watson v Brock's Exr 1998 SLT 40 |
Authority for the proposition that if facility and circumvention are established, separate proof of harm is unnecessary. |
The court cited it to explain that proof of facility and circumvention alone suffices as a basis for reduction, but found facility/circumvention not established here. |
| Smyth v Romanes's Exrs 2014 CSOH 150 |
Confirmatory authority on facility/circumvention and on independent advice saving a transaction from abuse of trust. |
The court relied on Smyth (and Lord Glennie's observations) to emphasise that independent advice can defeat a plea of undue influence; the court found independent advice was given and persuasive. |
| Gray v Binny (1879) 7 R 332 |
Elements required to establish undue influence: (i) relation creating dominant influence; (ii) trust/confidence; (iii) material gratuitous benefit; (iv) absence of independent advice. |
The court applied these elements when assessing the undue influence plea and concluded the elements were not shown on the evidence. |
| Rea v Rea [2024] EWCA Civ 169 |
Statement that undue influence must be more probable than other hypotheses; if another possibility is equally likely undue influence is not established; presence of beneficiary during instructions is not necessarily untoward. |
The court relied on Rea to accept that each case turns on facts and that the spouse's presence during instruction did not of itself indicate undue influence here. |
| Pirie v Clydesdale Bank plc 2007 SCLR 18 |
Noting facility/circumvention and undue influence are distinct but often run together because evidence overlaps. |
The court used this authority to explain the common evidential approach to the two pleas and to justify considering them together. |
| Horne v Whyte 2004 SCLR 197 |
Example where solicitor criticised for not advising testator in absence of beneficiary when concerns existed about testator's health/dependence. |
The court considered Horne but distinguished it on facts: here there were no circumstances that gave Attorney Monaghan cause for the same concern. |
| Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44; [2002] 2 AC 773 |
Duty of inquiry in inter vivos transactions where conflict of interest arises (example: wife granting security for husband); illustrates contexts where independent face-to-face advice may be required. |
The court cited Etridge as an example of a different context (inter vivos security) where a duty of inquiry is pronounced, and explained it did not translate into an automatic requirement for separation in will instructions. |
| Edwards v Edwards [2007] EWHC 1119 |
Referenced regarding questions of 'poisoning the mind' and proof beyond the scope of the present submissions. |
The court referenced it to note the distinction between allegations of poisoned mind and fraud and that such matters were beyond the present scope. |
| MacGilvary v Gilmartin 1986 SLT 89 |
Referenced in the context of allegations of fraud/poisoning of mind. |
The court noted it in passing when observing the evidential limits of the Plaintiffs' broader allegations. |
Court's Reasoning and Analysis
The court set out the legal tests for facility and circumvention and for undue influence and then evaluated the evidence under the seven core circumstances advanced by the Plaintiffs.
On capacity and the Testator's condition the court accepted that he was physically frail and that his decision-making could be "fluctuating" in quality, but the parties had agreed he had testamentary capacity when signing the will. Medical notes and care notes were examined; the court found insufficient evidence that the Testator was specifically vulnerable to pressure at the time the will was executed.
Regarding willpower and personality, the court accepted substantial evidence that the Testator was strong-willed, resolute and resistant to control and that his conduct (including choice of solicitor and desire to keep the will secret) showed mental acuity rather than incapacitation.
On the departure from the 2004 will and religious expectations, the court accepted that the 2022 will was a radical departure but found persuasive the evidence that the Testator did not understand the practical effect of the 2004 Shariah-based will and expressly preferred clarity as explained by his solicitor.
Concerning prior transfers to the spouse and whether she had already been adequately provided for, the court found insufficient evidence to determine values or the spouse's needs and therefore could not infer undue influence from the earlier transfers.
On the will-preparation process, the court accepted Attorney Monaghan's and Attorney Shahzad's evidence that the Testator was coherent during meetings, that the will was explained (including in Urdu), that no intervention by the spouse was observed, and that independent legal advice was given. The court acknowledged some "red flags" raised by the Plaintiffs but found they did not amount to proof of undue influence or circumvention in the circumstances.
The court assessed witness evidence (including recordings) and accepted the independent professional witnesses as reliable. It found the Plaintiffs' evidence to be affected by affection and concern and, in places, speculative. Where alternative explanations existed, the court accepted those more consistent with the objective evidence.
Overall, applying the legal tests and precedents, the court concluded the Plaintiffs had not established facility and circumvention or undue influence: independent advice had been provided, the Testator's instructions were consistent across meetings, and the will reflected his true intentions.
Holding and Implications
PLAINTIFFS' ACTION DISMISSED
Holding: The court sustained the plea-in-law for the first and second Defendants and refused to grant the Plaintiffs' conclusions, thereby upholding the 11 February 2022 will.
Implications: The direct effect is that the 2022 will stands and will be given effect; the court reserved the question of expenses. The opinion records no new legal principle — it applies established authorities to the facts and reaches a fact-specific conclusion that no undue influence or facility and circumvention was proved.