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MacRobert v. Smith [2003] ScotCS 89 (28 March 2003)

OUTER HOUSE, COURT OF SESSION
A2130/01	OPINION OF LORD NIMMO SMITH in the cause DAVID J. C. MACROBERT Pursuer and Objector; against DR CATHERINE SMITH Defender and Respondent:   ________________

 

 

Pursuer and Objector: Cheyne; Peter T. McCann, Glasgow, for Dominus Litis

Defender and Respondent: I. G. Mitchell, Q.C.; Campbell Smith, W.S.

28 March 2003

1. These proceedings relate to the estate of the late Thomas Peter Cahill ("Mr Cahill") who died on 31 July 1986. He was married to Mrs Margaret McCann or Cahill ("Mrs Cahill") who died on 6 April 1986 and thus predeceased him by almost four months. I am principally concerned with what happened during that period.
2. Mr and Mrs Cahill had four children, Mrs Marie Thérèse Cahill or Keilty ("Marie Thérèse"), Margaret Bernadette Cahill ("Bernadette"), Dr Catherine Patricia Cahill or Smith ("Catherine") and James William Cahill ("James"), to each of whom I shall, for convenience, refer by her or his first name. Marie Thérèse is married to Henry Keilty. Catherine was formerly married to Harry Smith and is now married to Cairns Mason. James is married to Barbara. Each of the three married children has children of her or his own (Catherine by her first marriage).
3. Mrs Cahill left a Will dated 21 March 1984 in terms of which she bequeathed her whole estate to Mr Cahill, provided that he survived her for twenty eight days, as he did, and appointed him to be her executor. Mr Cahill left a Will dated 2 July 1986, in terms of which he appointed his son-in-law Harry Smith, who was then married to Catherine, to be his executor ("the executor"). He bequeathed pecuniary legacies of £4,000 to Marie Thérèse, £5,000 to Bernadette and £3,000 to Catherine, a total of £12,000. He bequeathed the residue of his estate, after payment of these legacies and all his debts, funeral expenses and the expenses of winding up his estate, to James. Harry Smith accepted office as Mr Cahill's executor and entered upon the administration of his estate. In about November 1986 he obtained confirmation of the estate amounting in value to £40,722.02. In terms of the relative inventory, Mr Cahill's heritable estate was the house belonging to him at 111 Yokermill Road, Yoker, Glasgow ("the Yoker house"), which was valued at £40,000, and his moveable estate consisted of various sums amounting to £722.02. There was accordingly insufficient moveable estate to pay the pecuniary legacies.
4. The courses of action which were open to the executor were either to sell the house or to secure payment from James of enough money to pay the pecuniary legacies and any other outgoings which required to made by the executor and thus to enable the Yoker house to pass to James as residue. At all material times James has occupied the house and has maintained that Mr Cahill intended that it should pass to him as residue without any payment on his part. He has, accordingly, refused either to make any payment or to vacate the house to enable it to be sold. In this situation the executor was unwilling to continue in office and in October 1987 he applied to this court for appointment of a judicial factor. In due course, by interlocutor dated 20 January 1989, David John Carmichael MacRobert, Solicitor, Glasgow ("the judicial factor") was appointed to be judicial factor on Mr Cahill's estate. In a separate action, which is presently sisted, the judicial factor seeks to have James removed from the Yoker house. Of course, if Mr Cahill's moveable estate was understated in the inventory, and was truly enough to meet the pecuniary legacies and other expenses, James would be entitled to receive the house as residue without making any payment himself. He maintains that this was so.
5. On 27 June 1986, on the narrative that his health was deteriorating, Mr Cahill executed a Power of Attorney, in terms of which he nominated and appointed Catherine to be his attorney with the powers set out therein. The present proceedings originate in an action raised in this court in 1997 in terms of which the judicial factor is the nominal pursuer. It is averred that permission has been granted by the judicial factor for James to raise proceedings in his name and act as dominus litis. Where I refer hereinafter to "the pursuer", I mean James. Catherine is the defender in the action. The primary conclusion is for a full account by Catherine of her intromissions with the estate of Mr Cahill and for payment by her of the balance found due, failing which for payment by her of the sum sought in the alternative of £23,200. In the course of subsequent procedure, Catherine admitted not only that she had carried out certain transactions under the Power of Attorney, but that she had also intromitted with certain funds during the period from 6 April 1986. She accordingly admitted that she was under a duty to account to the pursuer for her intromissions with Mr Cahill's estate, both in her fiduciary capacity between 6 April 1986 and the granting of the Power of Attorney on 27 June 1986, and also in her capacity as attorney from the date of the granting thereof until the date of Mr Cahill's death. By interlocutor dated 5 October 2000 accounts, objections and answers were appointed to be lodged. This was done, and in due course I heard a proof on the objections and answers.
6. The account lodged by Catherine has been prepared on her behalf by BDO Stoy Hayward C.A. It covers two periods, that from 6 April 1986 to 26 June 1986, and that from 27 June 1986 to 31 July 1986. What is shown may be expressed as a brief narrative. According to the account, on 6 April 1986 Catherine received £18,000 from Mr Cahill and lodged this sum on 7 April 1986 in a term deposit account in name of Mr Cahill and herself. On 2 May 1986 the sum of £18,000 and accrued interest of £86.35 was transferred into a money market cheque account in joint names of Mr Cahill and Catherine. On 16 May 1986 Catherine drew a cheque for £1,000 in favour of herself and on 19 May 1986 she drew a cheque for £2,000 in favour of herself. On 2 July 1986 she drew a cheque for £15,200 in favour of Cairns Mason. Meanwhile interest had continued to accrue, leaving a remaining balance of £73.77 after payment of the three cheques. On 15 July 1986 a bank draft for that amount was made payable to Mr Cahill and Catherine. The account was then closed. Meanwhile, Mr Cahill had a current account in his own name, into which various pension payments were made. The balance on 27 June 1986 was £940.57, and between then and 31 July 1986 pension payments totalling £502.56 were made into it. On 30 June and 3, 4 and 7 July 1986 cheques previously drawn by Mr Cahill on the account for various routine payments were paid. After her appointment as attorney Catherine drew four cheques on the account, three of them for small routine amounts and one for £500 in favour of Bernadette. A small balance in the account formed part of Mr Cahill's moveable estate after his death.
7. The objections range far and wide. The principal allegations are as follows. In objection 1 it is averred that Catherine has failed to account for much of Mr Cahill's moveable estate. Mr Cahill indicated that he had around £60,000 in cash at around the outset of Catherine's intromissions. By the time of his death approximately £15,000 had been placed in a trust fund for the children of Marie Thérèse. This leaves £45,000 to be accounted for. The defender has failed to account for much of that sum. Among further allegations in objection 1 are that furniture from the Yoker house was removed by Catherine and Cairns Mason, and that they removed all of Mr Cahill's financial documents including his bureau and filing cabinet. In objection 2 it is alleged that the accounts fail to mention the transfer of £15,000 to Bernadette, and, in particular, transfers totalling £10,000 between 8 April and 12 May 1986. Objection 3 relates to the two cheques for a total of £3,000 drawn by Catherine in favour of herself. Objection 4 relates to the cheque for £15,200 paid by Catherine to Cairns Mason. Also in that objection and in objection 6 it is alleged that Catherine received a further sum of £15,000 from Mr Cahill between 3 and 21 April 1986. Objection 5 relates to the sum of £273.77. This latter sum was the total amount of the accrued interest on the sums at credit of the term deposit and money market cheque account. The objection appears to have proceeded on a misunderstanding of the account prepared on Catherine's behalf, and I heard no more about it. Objections 7 and 8 relate to operations on Mr Cahill's bank accounts on various dates between 25 April and 6 June 1986. The answers state that these were made by Mr Cahill, and this was not thereafter disputed. Objection 9 relates to the payment of £500 to Bernadette, and I shall comment on it later.
8. The parties proceeded to proof principally on objections 1 to 4. If the averments in the objections (which were not, as I understood it, framed by junior counsel who appeared for the pursuer at the proof) range far and wide, the evidence, particularly that of James, ranged even further and wider. At the hearing on evidence, however, counsel for the pursuer submitted that only certain matters were germane to the central issue in the case, which was the drawing by Catherine of the cheque for £15,200 in favour of Cairns Mason. Counsel said that what had been established by reference to the evidence was that whilst Mr Cahill may have had £60,000 in cash, having heard the evidence from Bernadette and James he would be advancing his submissions too far if he suggested that Mr Cahill had entrusted all these sums to Catherine. He went on to say that the burden of the evidence indicated that at least so far as sums had been transferred to Bernadette, these would appear to have been transmitted appropriately. He was therefore unable to submit that any of these particular sums, however they might appear to transgress Mr Cahill's ultimate testamentary intentions, were put in the care of Catherine such as to put her under the duty of accounting for them. He therefore submitted that there was insufficient evidence to enable the court to conclude that, in terms of objection 1, there was £45,000 to be accounted for. So far as the remaining averments in objection 1 were concerned, counsel said that these related to evidential matters which were more to do with Mr Cahill's testamentary intention than with any proper objection to Catherine's account. Counsel was therefore not submitting that I should give effect to the primary proposition that there was £45,000 unaccounted for.
9. Turning to objection 2, counsel said that his position in respect of the transfers to Bernadette was that the burden of evidence was that Mr Cahill himself had made these payments for the reasons given by Bernadette. He went on to say that it would appear to be the case, on the evidence, that Mr Cahill used to make gifts to his children during his lifetime. It was not part of the present proceedings to enquire whether these gifts were appropriate or inappropriate. Bernadette's evidence indicated that she received gifts from or on the instructions of Mr Cahill. There was simply no evidence to suggest any conspiracy on the part of Catherine and Bernadette in this matter.
10. Taking objections 3 and 4 together, counsel said that of the £18,000 received by Catherine on 6 April 1986, he did not take issue in relation to the sums of £1,000 and £2,000 in respect of which Catherine had drawn cheques in favour of herself. He only took issue with the sum of £15,200 paid by Catherine to Cairns Mason. Counsel submitted that the evidence established that this money had not been the subject of a gift by Mr Cahill to Catherine, to do with as she pleased, but a sum held by her on Mr Cahill's behalf and in respect of which she was obliged to account to his estate. Counsel submitted that I should look simply at the facts surrounding the receipt by Catherine of the £18,000, and the payment to Cairns Mason of £15,200.
11. I have summarised the opening submissions of counsel for the pursuer in this way in order to explain why I intend to make no reference to many of the matters which were referred to in the course of the proof. I propose, as I was invited to do, to refer only to those matters which appear to me to be relevant to the resolution of what counsel for the pursuer described as the central issue. While some of these matters remained controversial at the hearing on evidence, some were not, but still appear to me to be of assistance in the performance of my task. It is worth making a number of points now. Counsel for the pursuer did not make it part of his case that, as averred in objection 4, in addition to the £18,000, Catherine received a further sum of £15,000 from Mr Cahill between 3 and 21 April 1986. James has convinced himself, from various statements made by his parents and by Catherine, that she was lent £15,000 in April 1986. Catherine has consistently denied receiving this or any sum as a loan from her parents or either of them. In the course of his evidence James accepted that the judicial factor had been unable to find any evidence that such a payment was made. James had taken this up with the Accountant of Court, because he did not know how thorough the judicial factor had been. The Accountant of Court did not say that more should be done. The fact that at the conclusion of the proof counsel for the pursuer made it clear that he was not insisting that the alleged £15,000 loan had been made is a matter of considerable significance, to which I shall return.
12. Also of significance is that at the conclusion of the proof it was not submitted that Bernadette's evidence about payments to her should be rejected. Indeed, counsel for the pursuer did not invite me to reject any part of her evidence. This is of significance not only because it is contrary to James's conviction that some at least of the money received by Bernadette was not given to her by Mr Cahill and is repayable by her, but also because, if Bernadette is treated as a witness of credit, even by counsel for the pursuer, it entitles me to accept parts of her evidence which had a bearing on the central issue in the case.
13. Again of significance is that, by no longer taking issue with the payments by Catherine to herself of the sums of £1,000 and £2,000, counsel for the pursuer was in effect conceding acceptance of her evidence in relation to these payments as truthful. This has an obvious potential bearing on the remainder of her evidence.
14. Finally, although the issue of Mr Cahill's furniture and financial documents was never more than peripheral, it was explored in some detail in the evidence, along with other numerous peripheral issues. Despite James's conviction to the contrary, there was clear evidence, supported by a note by Mr Cahill, that when he moved house the furniture and financial documents were dealt with in accordance with his wishes.
15. I turn now to the central issue. The question is not so much why Catherine paid £15,200 to Cairns Mason, which she was fully entitled to do and for which she has no obligation to account if the money was hers to do with as she pleased, as whether the £18,000, or at least £15,200 of it, was the subject of a gift by Mr Cahill to Catherine. Although the law was only referred to in passing, I understood counsel for the pursuer to accept that the normal presumption against donation does not apply in the case of a payment made by a parent to his or her child, so that the onus was on the pursuer to prove that the money admittedly received by Catherine was not the subject of gift by Mr Cahill (see Walkers, Evidence, 2^nd Ed., para. 3.11.1). At the proof, in addition to numerous documentary productions (all of which were agreed to be what they bore to be), evidence was led from four witnesses: James, Bernadette, Catherine and Cairns Mason. Bernadette, who had travelled from the United States, was by agreement interposed as a witness after James had given evidence and before the pursuer's proof was closed. This was because the proof had overrun its original estimate, and by giving evidence when she did, Bernadette would be spared a subsequent journey to give evidence. In the event, when the proof resumed after an interval of some months, and although a number of other names featured in the pursuer's list of witnesses, counsel for the pursuer immediately closed his proof. The most striking aspect of this is that Marie Thérèse was not called as a witness for the pursuer, or indeed for the defender. The former might have been expected to happen, because there were indications in some of the documents that Marie Thérèse supported James's position, and also because a foundation for certain evidence that might be given by her was laid in both the examination-in-chief of James and in the cross-examination of Bernadette. Bernadette's evidence clearly favoured Catherine's position, as did that of Cairns Mason. This left James as the sole proponent of his position: not only was no evidence led from any family member to support him, it was clear that he had failed to gain the support of either the executor or the judicial factor.
16. I propose at this stage to say something about the personalities of Mr Cahill and his children, and the impressions I formed of the witnesses who gave evidence. Mr Cahill was a secondary school teacher. At one time he aspired to become a Roman Catholic priest, but his training was cut short by ill health. Mrs Cahill, whom he subsequently married, was a teacher. Mr Cahill's religious beliefs governed his attitudes to his family. According to James, whose wife Barbara's previous marriage had ended in divorce, Mr Cahill would not allow her into his house until there had also been a Church annulment. James also said that fidelity, monogamy and family life were very important to his father, and that the moral high ground gave reason to his life. He seems to have been somewhat unworldly about his financial affairs. In an undated letter to Marie Thérèse and Harry Keilty, written in the last months of his life and after Mrs Cahill had died, Mr Cahill wrote: "I had no idea of money!!". This was written in a passage which indicated that he recognised that after his wife's death he needed help from Catherine in dealing with his financial affairs. The Yoker house was in joint names of Mr and Mrs Cahill and the survivor. They also had sums at credit of a number of accounts in joint names. In addition, Mrs Cahill was in the habit of keeping large sums of cash in her possession. Bernadette described her mother as "a very eccentric person".
17. There was some evidence that, whether or not with justification, Mr Cahill took the view that Marie Thérèse was not good at looking after her money. Again according to Bernadette, Marie Thérèse "let money slip through her fingers". Bernadette herself had moved away from Scotland. At one time she worked as a journalist in Canada, and later she moved to the United States. In her demeanour as she gave evidence I found her to be straightforward, firm and convincing. As I have said, counsel for the pursuer did not eventually seek to dispute what she said or to invite me not to hold her to be a witness of credit.
18. Catherine, whom I observed carefully, I found to be firm, steady, clear and convincing in her evidence. As I understood her brief account of her qualifications, Catherine had a doctorate and was an actuary and a Fellow of the Chartered Institute of Bankers. She worked at various times in banking and in universities. She described herself as a consultant on the impact of information technology on society. Sometime before the events with which I am concerned she had published a book on this subject, which enjoyed considerable success. Her first husband, Harry Smith, was also an actuary and worked for an insurance company. The marriage had evidently become unhappy, and not long after Mr Cahill's death they separated. This is a convenient point at which to deal with one aspect of James's allegations, which was to do with Catherine's relationship with Cairns Mason. For many years Catherine and Harry Smith were friendly with Cairns Mason, who was also an actuary and worked for the same company as did Harry Smith. Harry Smith and Cairns Mason were bridge partners, and Cairns Mason became a friend of the family and was godfather to two of the children. Presumably because he saw that there were difficulties between Catherine and Harry Smith, Cairns Mason over a period of several years gave her financial help in order to develop her own career. This started in about 1979, and consisted of such things as underwriting her business trips and helping her with the purchase of clothes suitable for business meetings. Catherine did not ask Cairns Mason for the money, he decided himself to give it to her because he saw that she needed it. Because James clearly regarded their relationship, particularly in 1986, as improper (he described it in one letter as a "liaison") it was the subject of detailed and at times intrusive questioning of both of them. I am entirely satisfied that there was no impropriety whatever. Cairns Mason, who gave his evidence with great sincerity, was clearly motivated by charitable considerations in providing financial assistance to Catherine, because he perceived a need. His relationship with Catherine did not alter from that of being a family friend and occasional benefactor until after she and Harry Smith had separated and were subsequently divorced. Catherine and Cairns Mason were married in early 1991. Unwilling though James may be to accept this, they both appeared to me to be people of the highest honesty and integrity who were very careful in their dealings with others. I have thought it necessary to explore this matter because, as I understood it, James's view is not only that their relationship in 1986 was improper but that it lay behind Catherine's dishonest appropriation of money from Mr Cahill. To accept this would involve holding, among other things, that Catherine also perjured herself when she gave evidence: both counsel agreed that I had to treat it as a matter of her credibility.
19. James, whom I also observed carefully, by contrast, made a poor impression on me. He described himself as a freelance physicist and part-time lecturer. He previously held teaching posts and was a research fellow. At the time of the proof he gave an Irish address as his residence in addition to the Yoker house. Some of his private work included a design project in which his father helped him. There was evidence that he received money from his parents to finance his projects. Despite occasional efforts to calm himself, he showed considerable agitation throughout his evidence. He was often rambling, going into excessive detail to support his view of events. He showed a great willingness to attribute improper motives to others. Two examples of this will suffice. In a letter to his father dated 15 June 1986, which mostly related to the Yoker house (and to which I shall return), James alleged that Catherine "steamrollered you into making all sorts of decisions at the wrong time". After elaborating on this, he wrote:

"The only other place where I have met such double standards was the RAF under Wg Cdr [name in original]. He nearly put me in a mental home, and Catherine makes him look like a beginner."

He accused her of "crazy schemes" and of having tried to break up his marriage. He clearly also believes that the judicial factor has been deliberately obstructive, and in an astonishing passage at the end of his cross-examination he said that he believed (without offering any evidence to support the belief) that there was a financial agreement between Catherine and the judicial factor. These and numerous other passages lead me to the view that if James finds something that does not fit his scheme of things, then it can be explained by the dishonesty of, or even conspiracy among, others. Counsel for the defender was careful not to invite me to reject James's evidence as incredible. Indeed, I did not form the view that he was being deliberately dishonest in giving his evidence. He clearly believed what he said, and said it with great intensity. But neither the manner of his giving evidence nor the content of it was such as to inspire confidence in me, and I would not be prepared to treat him as a reliable witness on contentious matters unless I could find support elsewhere.

20. I return to the central issue in the case. Catherine's position can be quite simply stated. She received money from her father, Mr Cahill, as a gift in pursuance of a decision he had made to give sums of about £15,000 each to his daughters during his lifetime. There is no dispute that he did this in respect of Marie Thérèse and Bernadette. By inter vivos deed of trust prepared on Mr Cahill's instructions by Gordon William Tulloch Murphy, Solicitor, Stirling, and executed by Mr Cahill on 2 July 1986, Mr Cahill narrated that he had conveyed or was about to convey the sum of £15,000 to Harry Smith and Mr Murphy as his trustees in trust for the purposes therein set forth. These included provision for payment of the income to the children or remoter issue of Marie Thérèse in the exercise of the trustees' discretion, with power to advance capital to these beneficiaries, but on 2 July 2001 any part of the trust estate remaining in the trustees' charge was to vest in Marie Thérèse. It appears from other evidence that in fact £14,825.99 was the sum initially credited to a bank account opened in name of the trustees. Bernadette's evidence, which in the end was not disputed, was that she received various sums as gifts. In about June or July 1985 she received from her parents, to help her in the purchase of an apartment in Canada, the equivalent in Canadian dollars of £5,319. In April 1986 she received from Mr Cahill £2,000 to cover her flight and other expenses incurred by her when she travelled to Scotland for her mother's funeral. On her return to Canada her father sent her £3,000 by cheque, probably two cheques, one for £2,000 and the other for £1,000, and in early May 1986 he sent her a cheque for £5,000. The total in her case was accordingly £15,319. I do not recall that any evidence was led about the cheque for £500 drawn by Patricia in Bernadette's favour on Mr Cahill's current account, and I was not addressed on this. The explanation given in the answers to the objections is that when Mr Cahill was severely ill Bernadette travelled from Canada to see him and shortly before his death he asked Catherine on his behalf to pay her £500 as a contribution towards her travel expenses.
21. As I have already mentioned, in terms of his Will Mr Cahill bequeathed pecuniary legacies of £4,000 to Marie Thérèse, £5,000 to Bernadette and £3,000 to Patricia. He bequeathed the residue of his estate to James. He did not make a specific request of the Yoker house to James, but the bequest of residue was capable of carrying the Yoker house or at least the balance of the proceeds of sale thereof. Whether James can receive the Yoker house without its having to be sold and without his having to make any payment of money to meet other provisions of his father's Will depends upon Mr Cahill's intentions in relation to the £18,000 banked by Catherine.
22. There are two main pieces of evidence which point to Mr Cahill's overall intentions during his lifetime. First, in a letter to Marie Thérèse dated 21 April 1986, at a time when he was staying at James's house in West Kilbride, Mr Cahill, after reference to his own health and to matters of religion, wrote:

"Now you know that I always wanted to share out with you what mum & I had collected, although Patsy [Catherine] and Bernadette insisted that I should keep something. So Jim [James] is getting the house and the money is being divided among the rest of us. Mum has been having a great laugh at us because she had stashed away far more than I had dreamed off [sic]. There will be £15,000 for you and Patsy & Bernadette and me. I also have two pensions, which alone could keep me in comfort and probably let me continue the granny pennies, and help the family in emergencies. You are not getting the money in a lump as the income tax would probably destroy the benefit. So we are working on some kind of a trust whereby you will get the interest (at present £120 per month of 31 days) for my life and the capital at my death."

Towards the end of the letter he wrote:

"So I still love you and all my children. Bernadette & Patsy are the two little girls and Jim the little boy that you played with ..., and they are still in need of love although they may not realise it. More things are wrought by prayer than this world dreams of."

23. Secondly, on about 14 April 1986, while Bernadette was still in Scotland following her mother's funeral, she took Mr Cahill from Catherine's house in Braco, where they were both staying at the time, to see Mr Murphy in Stirling. Her evidence was that two things were on Mr Cahill's mind. He wanted to be reassured about the position in relation to the Yoker house, title to which was in joint names of him and Mrs Cahill and the survivor, so that after her death it was in him; and he wanted to know about the effect of his wife's death on a Will which he had executed at the same time as she executed hers (and which was revoked by his subsequent Will). He was clearly very open with Bernadette. He brought out all his bank accounts, which he described as showing everything he had. She was able to see that he had just over £30,000 in these accounts. He said to her that basically he wanted to get rid of it. He wanted to have enough for himself to live on and not have anything else left over. He wanted to make sure that it was all divided equally among his four children. He was particularly concerned that any money Marie Thérèse got was secure. When they were with Mr Murphy, Mr Cahill was reassured about the title to the Yoker house. He wanted to execute a fresh Will and provide equitably for his four children. He wanted to divide his estate as equally as possible. He was under the impression that, if he divided his money among his daughters and left the house to James, that would ensure a fair and equitable division. Mr Murphy took him up on this, pointing out that the house must have considerably increased in value since it was bought in 1964. Mr Cahill was very surprised. According to Bernadette, he was a very spiritual person, material things did not really matter to him, and her impression was that it had never previously crossed his mind that the house would increase in value. Mr Murphy said that there would be no problem about setting up a trust in respect of Marie Thérèse's share of the money, but he recommended that a valuation of the house be carried out. A valuation was subsequently instructed, and the house, which was in disrepair, was valued at £40,000 by Messrs Bell-Ingram on 12 June 1986. Mr Cahill was thus well aware of the value of the house by the time he came to execute his Will on 2 July 1986. On 17 July 1986, on Mr Cahill's instructions, Mr Murphy wrote to James about the contents of his Will, and briefly summarised them.
24. No intelligible reason appeared from the evidence why Mr Cahill might choose not to give Catherine a sum of the order of £15,000 during her lifetime, consistently with the intention he expressed to both Marie Thérèse and Bernadette, and indeed the evidence shows that he did make such a gift. Her evidence was that on 6 April 1986, the day her mother died, she went to the Yoker house. After Mrs Cahill's body had been removed, her father asked her to come up to the bedroom and said that he had something to give her. He opened a cupboard and in it there was a bundle of money. He said that he wanted her to take it and keep it as her own. She said that she would put it in the bank. He said to her that she should keep it, get rid of it, he did not want it, it was hers. She went downstairs and found James, who was in the house. She told him about this. They agreed that she would put it in the bank. When she banked the money, it turned out to be £18,000 in cash. She did not think it right that she should accept it as a gift, which was why she deposited it in joint names of her father and herself. Subsequently, during May 1986, at a time when she was taking her father regularly to Glasgow to visit the Yoker house and the hospital where he was being treated, her father asked her for two sums of cash, the first being £1,000 and the second £2,000. She drew this money out of her own account and gave it to him, and later drew cheques in her own favour out of the £18,000 she had deposited in their joint names. Mr Cahill did not say what he wanted the money for, but Catherine was under the impression that he might have given at least some of it to her mother's brother Charles McCann. On 26 June 1986 the doctor told her that Mr Cahill was dying of cancer, and she had to tell her father this. There was an emotional discussion during which Mr Cahill said that he really wanted her to have the money, it was hers. He made it clear that she was to accept it as a gift, even though she had refused to do so up to that point. It was after this that she decided to reimburse Cairns Mason for his generosity, which he had always intended as a gift but which she had accepted as a loan, by paying him £15,200 on 2 June 1986. So far as she was concerned, the money was hers, and she had the opportunity to repay her benefactor. Is there any reason why I should disbelieve this account, which was given with great seriousness and firmness?
25. James gave a version of the events of 6 April 1986 which was not identical with that given by Catherine, but did not appear to me seriously to undermine it, even if I preferred his version to hers (which I do not). Ultimately, the only two reasons advanced by James, apart from his evident animosity towards Catherine, were his unwavering conviction that his father wanted him to have the Yoker house, and his unsubstantiated assertion that Catherine received a separate sum of £15,000. I have already said enough about the latter reason. As for the former, it may be that Mr Cahill, although he did not make a specific request of the house, nevertheless contemplated that it would pass to James as part of the residue of his estate. If so, he must have miscalculated the amount of money he had to give away during his lifetime and to make the subject of specific bequests. There is insufficient evidence to establish what he did during his lifetime with some of the money from the accounts, in respect of which he showed statements to Bernadette. If he gave some money to Charles McCann, he may have given some to other people whom he perceived to be in need. What is clear is that he not only did not make a specific bequest of the Yoker house to James, he was not willing to convey it to James during his own lifetime. James seems to have been obsessed with the belief that it was his parents', and later Mr Cahill's, intention that he should have the house as the subject of a lifetime transfer. There were occasions when this might have been possible. When Catherine bought a house in Alva, at a time when both her parents were alive, there was some discussion about the possibility of their moving there. There was mention of financial assistance from them for her in connection with this house; this may have been what gave James the impression that she received a loan of £15,000, though in fact no such loan was ever made, because sales of Catherine's book were better than expected and she had enough money to pay for the house herself. After his wife's death, Mr Cahill became interested in buying a house in Ollerton in Nottinghamshire, where his sister lived. In the event, he was never well enough to take this further. He stayed for some time with James in West Kilbride, and thereafter with Catherine in Braco, before being admitted to hospital with his terminal illness. It was while he was in hospital that he executed the Power of Attorney and his Will.
26. Letters passing between James and Mr Cahill give some impression of the attitude of each of them to James's desire to have the Yoker house conveyed to him during Mr Cahill's lifetime, and Mr Cahill's unwillingness to do this. On 15 June 1986 James wrote a long letter to his father about his plans to sell his own house in West Kilbride and to move into the Yoker house, together with his wife and family. He went into detail about the amount of work that required to be done to the Yoker house and how he was not in a position to be able to borrow any money. Accordingly, as had always been intended, the house should be conveyed to him and his wife as a gift. It was at about this time that Mr Cahill must have become aware of the valuation of the house at £40,000. On 22 June 1986 he wrote to James about a proposed agreement under which he, James and James's family would live in the Yoker house. He wrote:

"It [the agreement] allows me to sell you the house if I ever become dissatisfied with your treatment of me. I had no reason to be dissatisfied at West Kilbride, and with the help of God and His Blessed Mother I will not be dissatisfied at Yoker so as soon as you get the agreement sell your house and move in."

This did not meet with James's approval. On 29 June 1986 he wrote to his father a letter which started:

"Could you please take a little time and write to me giving me a list of all the objections that you have to transferring the Yoker house to me & Barbara while you are still living. Nobody has taken the least effort to put forward a plausible reason for this decision. Catherine has ceased to behave rationally regarding you, me, & the house, and she is apparently imagining conversations."

The letter continued in similar vein. Later in it, James wrote:

"I am certain that some things will be made clearer once I get a chance to read your will, but to help me make some kind of reason out of the garbage that Catherine is producing, could you please write down just what is stopping the transfer."

As has been seen, Mr Cahill in fact executed his Will in the terms already set out, which were communicated to James by his solicitor. Notwithstanding this, James remained convinced that Mr Cahill still wanted to transfer the house to him.

27. On 22 July 1986 an event took place which, even on James's own description, appears to me to epitomise his single-minded obsession that the house should be conveyed to him. Mr Cahill was ill in bed in Braco and, after some initial vacillation in James's evidence, he accepted that his father must have been in extreme pain. One thought was uppermost in James's mind, which was to get his father to sign two letters which James had prepared and brought with him, one to Mr Murphy requesting the immediate despatch by courier of the title deeds for the Yoker house to another firm of solicitors in Stirling, and the second being a letter to these solicitors asking them to arrange for the transfer of title of the Yoker house into the names of James and Barbara. According to James, although it cost his father a big effort, he wanted to sign these letters, and did so. His father said that he wanted James to tell Catherine that he had signed them. James then threw his hands up and said to his father to forget it. They then sat and talked about James's work. It was only in answer to a question by me that James said that at one point he had in fact asked his father how he was. He subsequently decided not to post the letters. His father had wanted him to tell Catherine that he had signed them, and "I knew if I saw her she would go spare". James's conduct on this occasion, as described in his own evidence, hardly requires further comment. Despite his manipulative treatment of his own father, however, it is a point in James's favour that he appears to have realised when he had gone too far, which is why he did not post the letters which he had got his father to sign.
28. The main conclusion I reach on this narrative is that there is ample evidence that Mr Cahill did not intend, either during his last months or in his Will, that James should simply have the house as his own, or that any of his daughters should not benefit equitably, as he saw it, from his assets. This conclusion, moreover, appears to be consistent with Mr Cahill's beliefs about family life.
29. While, as I have said, many more matters featured in the evidence, I have referred to enough reasons for reaching a very clear view. This is that not only has James led no acceptable evidence that the money received by Catherine from Mr Cahill was not the subject of a gift, but that her evidence that it was a gift is entirely credible and I accept it. I reject as unreliable such reasons as James gave for believing the contrary, which have their origin in his own self-interest rather than in any verifiable fact. This being the only remaining issue upon which I was asked to adjudicate in favour of the pursuer, I shall repel the pleas-in-law for the pursuer and sustain the second, third and fourth pleas-in-law for the defender, being her pleas to the merits of the objections.