DAVID O'NEIL AGAINST JOHN O'NEIL AND MICHAEL O'NEIL
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
[2017] SC GLA 40
A477/15
JUDGMENT OF SHERIFF ALAN D MILLER
In the cause
DAVID O’NEIL
Pursuer
Against
JOHN O’NEIL AND MICHAEL O’NEIL
Defenders
Pursuer: Mr McShane, advocate, instructed by Primrose and Gordon, Solicitors
First Defender: Mr Davies, advocate, instructed by Thompson Family Law
Second Defender: Mr Thompson, solicitor, Thompson Family Law
Glasgow, 4 July 2017
The Sheriff, having resumed consideration of the case, repels the defenders’ third plea in law; upholds the defenders’ fifth plea in law; dismisses the action; insofar as not already dealt with, finds the pursuer liable to the defenders in the expenses of the action; allows an account thereof to be given in and remits same, when lodged, to the Auditor of Court to tax and report; certifies the cause as suitable for the employment of junior counsel.
Authorities
Axa General Insurance Company v Lord Advocate 2012 SC (UKSC) 122
Clark v Loudon (1856) 18D 499
Clunie v Stirling (1854) 17D 15
D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7
Eagle Lodge Ltd v Keir and Cawder Estates Ltd 1964 SC 30
Gibson’s Executor v Anderson 1925 SC 774
Gray v Binny (1879) 3R 332
Honeyman’s Executors v Sharp 1978 SC 223
Horne and Kynoch v Whyte [2003] ScotCS 291
Jamieson v Jamieson 1952 SC(HL) 44
McBryde, The Law of Contract in Scotland (3rd edition, 2007)
Mackay v Campbell 1967 SC(HL) 53
McKechnie v McKechnie’s Trustees 1908 SC 93
Macphail, Sheriff Court Practice (3rd edition, 2006)
Morris v Rae 2013 SC (UKSC) 106
Pascoe-Watson v Brock’s Executor 1998 SLT 40
Ross v Gosselin’s Executors 1926 SC 325
Swanson v Manson 1907 SC 426
Walker, The Law of Civil Remedies in Scotland (1974)
NOTE
Introduction
[1] The parties are 3 of the 4 sons of Mrs Martha O’Neil. Mrs O’Neil owned a house in Glasgow. In May 2010, she granted a love, favour and affection disposition to herself in liferent and to the defenders in fee. In December 2010 she made a will leaving the net residue of her estate to the defenders, who were also nominated as executors. Mrs O’Neil died in February 2012. I understand that the defenders have not yet sought to confirm to the estate. Although I was given no guidance as to the potential value of the estate, it may be reasonable in all the circumstances to assume that it is relatively modest.
[2] The pursuer’s primary crave in this action is for reduction of the disposition of May 2010. This is the second litigation between these parties: in June 2015 the pursuer obtained what was ultimately an unopposed decree for payment by the defenders of the sum of £115,000 on the basis of unjust enrichment.
[3] The case called before me on 30 and 31 May 2017 for debate on the defenders’ pleas in law numbers 3 and 5, which attack the pursuer’s title and interest to sue and the relevancy and specification of his pleadings. Although the defenders are separately represented, their pleadings are joint.
Pleadings
[4] The pursuer avers at Article 2 as follows: Mrs O’Neil (who I understand was born in 1930, not 1929 as stated on record) bought her council house in 1995, and then in 2006 sold it and purchased a property in Foinaven Drive, Glasgow. The pursuer made financial contributions to both transactions and to property and furnishing expenditures. Mrs O’Neil made several comments both to him and to James (the fourth brother) to the effect that she wanted to protect his position in various possible ways. The decree granted in the previous action constitutes a debt on Mrs O’Neil’s estate. The pursuer has suffered lesion.
[5] In Article 3 the pursuer avers that Mrs O’Neil was hospitalised in autumn 2009, during which time she asked her fourth son to help her make a will – without the first defender knowing about it - leaving her house to the pursuer. However, before this could occur the property was disponed to the defenders. At the time of granting the disposition, Mrs O’Neil “was suffering from ill health and was on a number of medications. She had long term rheumatoid arthritis and suffered considerable pain. At times she was bedridden. She suffered from chronic breathlessness and was on medication for heart disease and pain. Believed and averred that as a result of these conditions and old age the pursuer’s mother was facile.”
[6] Article 3 continues “The defenders enticed and persuaded the late Mrs O’Neil to transfer the title of the said property into their name... Believed and averred that the defenders persuaded the late Mrs O’Neil to transfer the title of the said property into their names to obtain the benefit of the value of the property and divest the pursuer of his share of the value of the property... The defenders took advantage of the pursuer’s mother’s facile condition. Believed and averred that they took advantage of their familial relationship and that they resided in the same property as the pursuer’s mother to exert influence over her.”
Submissions
Defenders
[7] Mr Davies asked me to dismiss the action either on the grounds that the pursuer had failed to demonstrate both title and interest to sue, or alternately that the pursuer’s pleadings did not set out a relevant basis for reduction by reason of lack of specification of undue influence or facility and circumvention. While the court should always be slow to dismiss an action for damages at this stage (Jamieson v Jamieson), this was a case where the pursuer’s action would inevitably fail even if he was able to prove his entire case on record.
[8] Title and interest to sue: the pursuer was not a party to the disposition and has no claim to title of the house. Reduction would cause the house to revert to the estate, of which he is not a beneficiary in terms of the will. He thus has no title to sue: Nicol v Dundee Harbour Trustees, see also Axa General at paragraph 169. Eagle Lodge v Keir and Cawder Estates demonstrates the specificity of the question of title. As the pursuer does not challenge the validity of his mother’s will, he has no interest in law in reduction of the disposition or in challenging the administration of the estate: Swanson v Manson, Lord President at pages 430-431.
[9] Undue influence: all four elements of this ground for reduction, which remained essentially as set out by Lord Shand in Gray v Binny, must be present and supported by averments. It was not enough for the pursuer simply to aver a familial relationship between Mrs O’Neil and the defenders: he had failed to lay any basis for proving that the relationship gave rise to trust and confidence, and involved dominant or ascendant influence. He also failed to address the fact that a solicitor had clearly drawn up, and witnessed, the disposition. If the pursuer was correct that the disposition was voidable, then any will leaving, for instance, half the house to him would have been equally – if equally wrongly – challengeable simply on the grounds that he had a familial relationship with his mother and had lived with her for many years.
[10] Facility and circumvention: the three matters the pursuer would require to establish were weakness and facility, circumvention, and lesion. Fundamentally, ‘facility’ means weakness of mind: Mackay v Campbell, Lord Guest at page 61, and Gibson’s Executor v Anderson. ‘Circumvention’ involves improper pressure or machination rather than outright fraud: Gibson, Lord Blackburn at page 788. While the degree of circumvention required is inversely proportional to the degree of facility, there must be averments capable of founding both elements. But the pursuer avers only physical infirmity and age on Mrs O’Neil’s part, with nothing indicative of mental decline; the averments as to circumvention are all very general and inferential – for instance, nothing inappropriate is suggested about the circumstances in which the deed was instructed and executed; and there is nothing to suggest that the deceased had suffered lesion.
[11] On behalf of the second defender, Mr Thompson adopted Mr Davies’ submissions.
Pursuer
[12] Mr McShane spoke to and amplified a written note of his submissions. He invited me to repel both pleas in law and to allow a proof.
[13] Title and interest to sue could not be excluded by the deed or title the pursuer seeks to reduce, least of all if allegedly fraudulently concocted to exclude his rights: Walker, Civil Remedies, page 142. The pursuer “has a fair case to raise the presumption that he may succeed” (Clark v Loudon at page 505). Reduction would result in the house falling back into residue of the estate, from which the executors would require to settle debts including the pursuer’s previous decree. A challenger to a voidable title need not show title himself: Morris v Rae, Lord Reed at paragraph 48. It was a non sequitur for the defenders to rely on the will, because by the time it was granted the estate had been denuded by the disposition being granted. Ultimately, the court had to consider the whole circumstances and the subject of the action.
[14] Undue influence: the essence of the doctrine was the reposing of trust and confidence in another person, who abuses it to secure a benefit for themselves or a third party. The notion of a dominant or ascendant relationship did not appear in the Lord President’s judgment in Gray v Binny, or in other leading cases such as Ross v Gosselin’s Executors and Honeyman’s Executors v Sharp. The latter also exemplified the recognition of a parent/child relationship as giving rise to trust and confidence, and that the precise nature of the undue influence may not be capable of formulation. Particular attention requires to be paid to gratuitous benefits: Gray, McKechnie v McKechnie’s Trustees. The presence of independent advice (the quality of which is out-with the pursuer’s knowledge) is not determinative: Horne and Kynoch v Whyte.
[15] Facility and circumvention: the three factors outlined in Mackay v Campbell had to be considered as a whole, since strong averments on one could supplement weak averments on another. Facility could arise in a broad range of circumstances, including age and physical debility resulting in pliability or a diminution in will to resist the circumvention: Clunie v Stirling at page 17. Proof of specific instances of pliability was not required in the face of a general condition leaving the person not fully capable of running their own affairs: Gibson’s Executor at pages 779 and 783. In Ross v Gosselin, the Lord President referred at page 334 simply to ‘debility’ without distinction between physical and mental. The pursuer’s averments of physical debility and old age were sufficient to found an inference of facility. Circumvention may be inferred from the whole circumstances, particularly where the granter is dead or incapacitated: Mackay v Campbell, Pascoe-Watson v Brock’s Executor. Lesion can be found in loss to a third party (Pascoe-Watson at page 47).
Defenders in Reply
[16] In a brief reply, Mr Davies said that title and interest were distinct matters, both of which the purser had to show. Clark v Loudon was a curious case which had to be read in the context of the feudal conveyancing of the time. Morris v Rae showed the need for the pursuer at least to have an undoubted entitlement to obtain the right he founds on: Lord Reed at paragraph 52. It was astonishing for the pursuer to claim that he would have had title to challenge the disposition at the time of granting. Being a creditor gave no title to intervene.
[17] As regards undue influence, abuse of trust could only be inferred where there was evidence of dominance or ascendance, which could not be assumed in family relationships. Nor had the pursuer laid any basis for questioning the quality or extent of legal advice given to Mrs O’Neil. Regarding facility and circumvention, at its heart the question of facility was about mental state. The pursuer had failed to state the impact of her physical health on Mrs O’Neil’s mental state, or to give any indication of how she might have been circumvented. Ultimately, she was entitled to choose to prefer certain of her children.
Discussion
[18] I will address the issues in the same order adopted by counsel.
Title and Interest to Sue
[19] I am satisfied that the pursuer has title to sue: he is “a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies” (Nicol, Lord Dunedin at pages 12-13). Further, I consider the court should be very slow to refuse title to sue where the deed which excludes a party’s rights is the very deed that party seeks to reduce. Fraud may be an obvious situation in which title to sue should not be excluded (Walker at page 142), but it is certainly not the only such situation. I am also satisfied that the pursuer’s interests may be prejudiced if his claim is rejected.
[20] Both Nicol and Eagle Lodge were cases where the pursuers sought to attack actions which the defenders claimed were justified by the terms of contracts or deeds to which the pursuers were not party. But neither involved an attack on the validity of the contract itself. As Lord Carmont put it in Eagle Lodge at pages 41-42, “there seems to be no good reason for a bargain to be disturbed which satisfies the parties who entered into the bargain, merely because someone deriving a right from one of the parties finds an item of the bargain to be irksome to him”. That is an entirely different situation from here, where the pursuer claims the contract itself to be voidable. On the defenders’ argument, it would be virtually impossible for any action of reduction to succeed, since it is almost axiomatic that a party will only seek to challenge the validity of a deed or will if its terms limit or exclude his or her rights.
[21] Had the will pre-dated the disposition, the pursuer would have had great difficulty in establishing either title or interest (unless, of course, he also sought reduction of the will). But it did not. It is a straw argument for the defenders to say that the promises averred in Article 2 would not have given the pursuer title to challenge the disposition as at May 2010, because that overlooks the fundamental point that in the absence then of any will or valid disposition the pursuer would have expected to succeed at some future point to a one-quarter share of Mrs O’Neil’s estate, including the house (irrespective of any distinct claim in terms of unjust enrichment).
[22] Further, by the time of raising this action the pursuer had already succeeded in establishing a direct interest in the value of the house by virtue of the decree obtained in the previous action. Of course it is true to say that the decree now constitutes a debt against Mrs O’Neil’s estate. I reject, however, the argument that the pursuer’s formal interest lies solely as a creditor. His rights and interests are far more intimately bound up in the whole situation than those of a mere creditor on the estate.
Undue Influence
[23] Gray v Binny forms both the starting point and the cornerstone for the doctrine of undue influence in Scots law. In my view, there is far less of a distinction between the definitions offered by the Lord President and by Lord Shand than counsel suggested. The notion of a ‘dominant or ascendant influence’ is simply one way of characterising the power imbalance without which trust and confidence could not come to be misused. It is futile to focus on the appearance or non-appearance of that particular form of words when there is in fact no substantive dispute as to the meaning of the concept. The influence in question may be relatively focused in scope, as in Honeyman’s Executors, whereas in circumstances such as Gray or Horne it may be of much wider extent. The existence of trust and confidence may more easily be inferred where the relationship is familial (Gray). The undue influence itself may be covert and inferred from circumstances that ‘cry out for an explanation’ (Honeyman’s Executors, Lord Maxwell at page 230). But the essence of the doctrine remains that a transaction may be voided where the party whom it greatly benefits has obtained it by abusing influence or betraying trust (see Lord Young at first instance in Gray, at page 338).
[24] The question is whether the pursuer in this case has laid a sufficient basis in his pleadings to lead evidence that might establish such undue influence. The relevant averments are as set out in paragraph (6) above. The extent of the case as pled is that the disposition marked an unexplained change from Mrs O’Neil’s previously expressed intentions; that the defenders must have persuaded her to give effect to this change of intention; that they did so with the intention of benefiting themselves and dis-benefiting the pursuer; and that Mrs O’Neil’s change of heart came about because they took advantage of their familial relationship, and because they resided along with Mrs O’Neil to exert influence over her.
[25] Taking at face value the averments of previous expressions in the pursuer’s favour, there is no doubt that the execution of the disposition was both unexpected, and highly unfavourable to him. But that in itself is no ground for reduction, as both the Lord Justice-Clerk and Lord Stormonth-Darling emphasised in McKechnie. Essentially, the pursuer’s case is to infer from the alleged change of heart, together with the defenders’ familial relationship with the deceased, that Mrs O’Neil must have given way to malign influence by the defenders.
[26] In doing so it seems to me he is trying to add 2 + 2 to make considerably more than 4. He makes no averments at all about the character of the relationship between Mrs O’Neil and the defenders, such as whether she had in fact trusted and confided in them to any extent previously. There is nothing to support the bare averment – at best an inference – that the defenders played any part in persuading Mrs O’Neil on this or indeed any other matter. There is nothing to suggest that any such influence was ‘undue’.
[27] I must also take into account other relevant circumstantial factors that emerge undisputed from the pleadings. While the extent and quality of legal advice and assistance may well be unknown to the pursuer, it is incontrovertible that a solicitor was involved in the preparation and execution of the disposition. The intentions carried out in the disposition are different from those that Mrs O’Neil may have expressed previously to the pursuer, but they are identical to those expressed in her subsequent will – which is not challenged. Not only that, but they are identical in purport to those previously expressed: that is, to treat the four sons unequally when it came to the house. And if the crux of the matter is the bare fact of the defenders’ familial relationship with their mother, in that sense they stand in no better or worse a place than the pursuer himself. None of these contextual points assist the pursuer.
[28] My unease about whether this aspect of the pursuer’s case adds up is amplified when I compare and contrast with the pleadings under discussion in Honeyman’s Executors and Horne, in both of which the defenders attacked at debate the sufficiency of the pursuer’s averments regarding undue influence. The pursuers in Honeyman made detailed averments of the increasing influence the defender (an art dealer) had come to have over the now deceased, of her reliance on his professional advice, and of the manner in which he appeared to have taken advantage of her reliance on him in a way that was contradictory to other specific testamentary instructions she had given at the same time.
[29] In repelling the defender’s objections to the pursuers’ case in Honeyman, Lord Maxwell said at page 230:
“What is involved is some kind of abuse of the position of trust for the benefit of the person in whom the trust is confided and it seems to me that whether there has been such an abuse to the extent which would justify the Court’s interference is a matter which cannot readily be confined within stated rules or ascertained on the basis of written pleadings without enquiry into the facts.”
[30] Turning to the question of onus, Lord Maxwell then (again at page 230) continued:
“...in my opinion, there must be cases where the facts as proved raise a prima facie inference that a gift has been acquired by abuse of a position of trust and which at least cry out for an explanation even though the precise mode of abuse is not known and might indeed be too subtle to be readily capable of precise expression. In my opinion the averments in this case, if proved, in the light of the appearance these facts take on when developed in evidence, may (I put it no higher) raise such an inference.”
[31] These eminently wise statements, entirely in keeping with the fundamental logic of Jamieson v Jamieson, might seem supportive of a tolerant view of the pursuer’s case here. But the problem for him is that, if the pursuers’ case in Honeyman was thin, his is positively anorexic. That is all the more evident in comparison with the pleadings under attack in Horne, where the pursuers offered to prove very detailed averments about the utter dependence of their now deceased father on his housekeeper, the defender, and about a multitude of ways in which she had cultivated that dependence. Specific averments were made about the manner in which the defender had effectively controlled and directed the deceased’s actions when it came to instructing and signing the disputed testamentary writings.
[32] Here, the only potential facts the pursuer offers to prove relative to undue influence are: that the defenders were Mrs O’Neil’s sons; that the effect of the disposition was quite different from what he had understood to be her intentions; and that, for an unspecified period and at an unspecified time, the defenders resided in the same house as Mrs O’Neil. Everything else is inference. The crucial elements of trust and confidence, influence and abuse of influence have no independent basis at all in the pleadings; at best, the pursuer believes them to be true. But with the circumstantial factors as set out at paragraph (26) lined up against him, such inferences cannot get off the ground.
[33] For these reasons, in the absence of averments that might lay any basis for several of the crucial elements of the doctrine, the pursuer’s case for reduction on the grounds of undue influence is clearly irrelevant and cannot proceed to proof.
Facility and Circumvention
[34] Although in practice allegations of facility and circumvention and those of undue influence often arise out of the same factual context, the doctrines are conceptually distinct and address different aspects of that factual context. McBryde offers a helpful overview of what is required at paragraph 16-12:
“To establish a case of facility and circumvention it is necessary to show facility, circumvention and lesion. These three factors are all interrelated. The strength of the case in one matter may compensate for a relative weakness in another. The question is whether the total effect is to suggest an invalidity in consent to the deed in question. The averments should be looked at as a whole.”
[35] The pursuer’s argument on the first matter, facility, proves problematic on examination of both the authorities and the pleadings.
[36] Mr McShane placed great emphasis on Clunie v Stirling. The case came before the Inner House on the defender’s appeal against the jury’s verdict; it is thus unsurprising, though not entirely helpful in the current context, that the report includes no record of the pleadings. The Lord Justice Clerk said at page 17 that facility embraced
“any case in which... a person has become easily imposed upon, or ready to yield his assent... whether from old age or actual disease, or the effects of the same on the nerves, leaving an unnatural anxiety and nervousness upon any particular subject, especially the state of his future income...”.
Towards the foot of the same page there is a further reference to the deceased’s “morbid apprehension about his income”. To some extent it is splitting hairs to argue that this does not amount to a requirement for ‘mental decline’, since it clearly presupposes what in other authorities such as Gibson’s Executor v Anderson is referred to as mental facility (Lord Blackburn at page 785) or being “of feeble will-power and easily influenced” (Lord Anderson at page 779). But to find assistance on the question of what basis a party pleading facility must set out in their averments, it is necessary to look elsewhere.
[37] The starting point for such enquiry must be Mackay v Campbell, a House of Lords decision where the defender averred that he had agreed the disputed contract while subject to facility and circumvention. The court found no basis for his position. In the leading judgment, Lord Guest said at page 61:
“There are no specific averments of the respects in which his mind was weak and facile. It is not said that his false belief in the severity of his illness and the consequences of his accident were so irrational as to lead to the conclusion that his sense of judgment was impaired. It is not suggested that he was suffering from any form of senile or other mental decay. A mere averment that he was in a weak and facile state of mind, without further specification, is not, in my view, sufficient.”
[38] Although Mr McShane highlighted the use in Ross v Gosselin’s Executor, at page 334, of the simple term “debility”, that has to be read in context: firstly of the reference in the remainder of that sentence to a person “whose individuality is impaired by infirmity or age”; and secondly of the fuller discussion of the deceased’s state found earlier in the Lord President’s opinion, at page 333. I will quote this at length since it sheds light on the deficits in the pursuer’s case here:
“It is... a singular feature of the averments regarding facility... that they do not assert – as is usual in such cases – that the testatrix was easily imposed on or easily led. They deal generally with her condition in the seventeen years between 1906 and the date of her death. It is said that, as she grew older, she became garrulous and eccentric, was subject to delusions, and ‘had no proper grasp’ of her business affairs; that she was forgetful, and kept money hidden in odd corners, and ‘believed or pretended to believe that people were taking her money’. But this is a most unsatisfactory averment to support the proposition, which is vital to a case on circumvention, namely, that at the date of the defender’s meeting with his aunt and at the date of the execution of the codicil, she was weak and facile in mind and easily imposed on. For anything the pursuer’s averments say to the contrary, she may have been more self-willed and less amenable to either influence or circumvention in 1907 than she had been theretofore.”
[39] From these latter authorities in particular, I take firstly that a party cannot set up a case of facility simply by describing the general condition of the person whose will was allegedly circumvented. (Although in Gibson the court seemingly went in the opposite direction by holding that there was no requirement to aver specific instances of pliability, that was against a background of general and well-established mental incapacity caused by ‘arterio-sclerosis’.) Secondly, I take that while physical state or indeed life circumstances are certainly not irrelevant to the question of facility, the crux of the issue is the impact on the person’s will-power and judgment. Ultimately, as Mr Davies argued, ‘facility’ is mental facility, however it may be caused. And thirdly, it is essential to lay a basis for evincing facility that is correlated to the date and circumstances of the disputed transaction.
[40] Here, the pursuer’s case on record for his mother’s facility consists of a list of her physical health conditions, a reference to her age, and a ‘believed and averred’ statement that she was thus rendered facile. This seems woefully inadequate and leaves crucial questions unanswered. To what extent was Mrs O’Neil subject to these conditions at the time – while, in addition, she was ‘hospitalised’ – when she allegedly wished to leave the house to the pursuer? To what extent was she subject to them at the time when she made her unchallenged will in December 2010? Was she generally a person of clear mind and firm will? What impact, if any, did these conditions have on her firmness of will? Specifically, what impact did they have when it came to her decision to dispone the house to the defenders in fee? Given that none of these questions are addressed in the pleadings, it is perhaps no surprise that the pursuer frames his critical averment as a ‘believed and averred’ statement – thereby begging the fundamental question (see Macphail at paragraph 9.54).
[41] Again, it is helpful to contrast the etiolated state of this pursuer’s pleadings with those examined in other cases. In Pascoe-Watson v Brock’s Executor, Lord Osborne had little difficulty in finding that the pursuer had pled a relevant case of facility and circumvention. I note that his summary of the relevant pleadings in itself extends to 3 full columns (1.5 pages) of the SLT report. It appears that the pursuer did make detailed averments about the deceased’s state over a period of time, but did so in order to chart her physical and mental decline, the growing influence of the second defender, and the relationship between that influence and both the deceased’s condition and her resultant decision to change her will substantially in favour of the defender. It is notable that Lord Osborne’s opinion is peppered with comments (emphasis added) such as “there are elaborate averments of the history of the testatrix’ addiction to alcohol” (page 47L), “It is quite plain... that the pursuer alleges a progressive deterioration in the testatrix’ state of mind...” (page 48B) along with various references to specific or significant averments. As regards facility, I draw attention in particular to the observation, apparently supported by averments of specific instances, that the testatrix “became susceptible to manipulation and became dependent emotionally upon the second named defender”.
[42] The contrast in the scope and level of detail in the pleadings is, once again, wholly unfavourable to the pursuer in this action. I reluctantly have to conclude that he has laid no basis in his pleadings for demonstrating facility on the part of Mrs O’Neil.
[43] It is, however, necessary to consider the other two elements of the concept independently, since the degree of facility that must be shown is inevitably linked to the degree of impetration and, indeed, with the degree of loss or lesion resulting. Here again, however, the pursuer falls very far short.
[44] I have no difficulty in accepting that the precise details of circumvention will often be unknown and may require to be inferred from the whole circumstances, not least when the granter of the deed is deceased (Mackay v Campbell, and several other authorities). But it is far easier to make that inference where the whole circumstances include a clear basis for claiming facility, and where there are averments of a pattern of behaviour by the alleged circumventor. The pursuer here makes no such averments. He thus lays no basis for proving circumvention. Once again, he falls back on inference, but without providing any ground-work that lays the basis for the inference he seeks to draw.
[45] Again, I entirely accept that a third party may suffer lesion in circumstances such as this case or Pascoe-Watson. Having said that, the pursuer in Pascoe-Watson was in a stronger position given that the will under attack had replaced a previous will in terms of which she would have been the principal beneficiary. But in principle, and particularly in cases involving division of an estate (whether in life or after it) it is evident that lesion may be found in dashed hopes of succession. It is irrelevant to consider whether Mrs O’Neil suffered lesion: after all, she is not the pursuer in this action.
[46] It is moot whether the scope of the lesion suffered by the pursuer extends to the whole value of the house, or rather to the one-quarter share of the value of his mother’s estate to which he would have enjoyed rights of succession in the absence of both the disposition and the will (or indeed to the value of his unsatisfied decree). As with the question of title and interest to sue, I am prepared for these purposes to put aside the effect of the subsequent will in order to take the strongest possible view of the pursuer’s case.
[47] But beyond lesion, the pursuer’s whole case for facility and circumvention, in terms of factual averments, comprises averments that his mother was elderly and in poor health, and that she favoured the defenders despite having previously expressed a wish to favour him. Everything beyond that – everything potentially indicative of actual facility or actual circumvention – is entirely inferential. For instance, the pleadings entirely lack any averments about the behaviour or attitude of the defenders towards Mrs O’Neil.
[48] While there may be a degree of lesion, I conclude that the pursuer has laid no basis for evidence of either facility or circumvention. To return to the arithmetical analogy, 0 x 0 = 0. I have found nothing to support the pursuer’s position in any of the various authorities to which I was referred. The pursuer may ‘believe and aver’ that there has been facility and circumvention but, with so little to base such beliefs on, I reluctantly conclude in terms of the Jamieson test that he has no possible prospect of success even if all his factual averments are proved.
Conclusions
[49] I thus repel the defenders’ third plea in law but uphold their fifth plea, to relevancy and specification. Without the averments of undue influence or of fraud and circumvention the pursuer has no basis in law for seeking reduction of the disposition. Accordingly, I dismiss the case against both defenders.
[50] Counsel agreed that expenses should follow success. Given the complexity of the questions of law explored during two days of debate, I grant the joint motion of parties to certify the cause as suitable for the employment of junior counsel.