Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2006] CSOH 82
A3254/02	OPINION OF LORD WHEATLEY   in the cause   MRS CERIA PIRIE   Pursuer;   against   CLYDESDALE BANK plc and OTHERS   Defenders:     ­­­­­­­­­­­­­­­­­________________

 

 

Pursuer: Party

Defenders: Robertson; Anderson Strathern W.S.

 

25 May 2006

 

[1] The pursuer is the widow of the late James Pirie who died on 6 March 2002. The pursuer and Mr Pirie had been married on 3 March 1987 at Manila in the Philippines. At the time of his marriage, Mr Pirie was 60 and the pursuer was 37. Mr Pirie had been married twice before. By his first wife he had a daughter, Elizabeth Pirie, who resided with him, and who is the second defender in this action. It appears that after the death of his first wife, James Pirie married for a second time, but this marriage ended in divorce. The third defender is the brother of James Pirie. The first defenders were removed from the action at an earlier stage.

[2] It is unclear from the evidence how the pursuer and Mr James Pirie first came to be in contact, but prior to 1987 Mr Pirie had written to the pursuer suggesting that they marry. The pursuer had a good job in Saudi Arabia at that time, and did not accept Mr Pirie's offer immediately. However, in 1987 Mr Pirie travelled to the Philippines and he and the pursuer were married there. The couple then returned to live at The Old Schoolhouse, Kinellar, in family with Mr Pirie's daughter Elizabeth. The title to the Old Schoolhouse was in Mr Pirie's sole name at that time, and remained so until his death.

[3] Elizabeth Pirie had, and continues to have certain learning difficulties, but during the course of her father's marriage to the pursuer she obtained a job as an assistant carer through the good offices of the local social work department. Although she received some form of remuneration for this employment, she did not contribute any of this to the maintenance of the family household. She explained in evidence that she had had difficulties in dealing with her income and eventually the Clydesdale Bank was given a power of attorney in respect of her financial affairs. There seemed to be little reason to doubt the pursuer's testimony that Elizabeth Pirie was not able in any way to control her expenditure in an effective manner and had squandered any money that she had earned.

[4] Shortly after his return to Kinellar following the marriage, Mr James Pirie gave up work. Thereafter he received a pension of some sort, and it appears that this money was put into his bank account with the Clydesdale Bank. At his death, Mr Pirie left liquid assets of some £60,000. On the other hand, the pursuer worked full time at a number of jobs throughout the entire period of their marriage, apparently as a carer or a cleaner, and her earnings were entirely devoted to the upkeep of the household. It appears further that the pursuer performed all the household duties such as cleaning and cooking; her evidence on this matter was not contradicted and Elizabeth Pirie did not claim in her evidence to perform any such tasks.

[5] The marriage between the pursuer and Mr Pirie was happy for the first two years. The pursuer maintained in evidence that thereafter the atmosphere in the family home became unhappy because of what she described as harassment and abuse from Elizabeth Pirie and from Charles Pirie. The impression I had from the evidence was that there may have been faults on both sides, but it seems probable that James Pirie was reluctant to acknowledge that there were any problems that required his intervention until late on in his life. The pursuer continued to share a bed with her husband until he was finally taken to hospital, and throughout the latter stages of his life the pursuer got her husband up in the morning and put him to bed at night.

[6] Towards the end of 2001 James Pirie's health began to deteriorate. At the back end of that year he contacted Margaret Hislop, his financial advisor with the Clydesdale Bank, and indicated that he wished to make a will. Mrs Hislop was a clear and reliable witness, although she could not recall the precise date when James Pirie contacted her. However, she remembered that Mr Pirie wanted to make a will which would benefit his daughter and not his wife. She considered that at that time Mr Pirie's mind and intentions were entirely clear. Following the appropriate practice within the company for which she worked, she then contacted the Trust and Executry Department of the bank at their office in Aberdeen and asked them to attend to Mr Pirie's request. At about this time Mr Pirie was seen by doctors from his general practice who expressed no concern about his mental capacity or attitude.

[7] On 10 January 2002, Mr Copland, a business officer of the Trustee and Executry Department of the Clydesdale Bank based in Aberdeen, attended at The Old Schoolhouse for a meeting with Mr James Pirie, following the request from Mrs Hislop. The pursuer was at that time at work, but Elizabeth Pirie was in the house with her father when Mr Copland arrived. Mr Copland asked Miss Pirie to leave the room, and she did so. He then took instructions from Mr Pirie on his testamentary intentions. Mr Pirie made it clear that he had not long to live, and that he was concerned that his daughter should continue to have a roof over her head after his death. From this I concluded that Mr Pirie understood that if he died intestate, the property which was owned by him at The Old Schoolhouse would go to his wife, and that his daughter's continued residence in that house could not be guaranteed.

[8] Despite the fact that Mr Copland was aware that his bank had a power of attorney on behalf of Elizabeth Pirie, and indeed appeared to have conducted or at least been aware of the annual review undertaken by his employers in respect of that deed, and further despite the fact that the pursuer was also a customer of the Clydesdale Bank, and that both the pursuer and Elizabeth Pirie would be significantly affected by the outcome of this meeting, Mr Copland did not have any reservations about any conflict of interest that might exist between himself, his employers, the pursuer and the second defender. He advised James Pirie as to what would happen if he died intestate, and of his various options should he decide to make a will. In particular, Mr Copland advised James Pirie that if he did not make a will his house would go to his wife. He also advised that he could make any financial dispositions of his moveable property that he wished. He also appears to have informed James Pirie about the possibility of granting a liferent either to his daughter or his wife. In the event Mr Pirie decided to make a Trust Disposition and Settlement in terms of which he left The Old Schoolhouse to his daughter, and his moveable property equally between his daughter and his wife.

[9] Mr Copland was satisfied that he had received clear instructions from James Pirie, and although all those who gave independent evidence in the case appeared to harbour some reservations about Mr Pirie's character - the word "eccentric" appeared on more than one occasion to provide a neutral epithet - the opinion that there was nothing apparently wrong with his mental state was shared by all. In particular, doctors who occasionally attended from his general practice found no reason to question his mental capacity. Dr Mair visited him on 14 January 2002 (some four days after Mr Copland's visit) and noted physical difficulties but no mental problems. However no one was able to cast any direct light on what had caused Mr Pirie to issue his testamentary intentions.

[10] The evidence of the two remaining defenders in the action in this respect was of little interest or value. Mr Charles Pirie, the brother of James Pirie, visited him regularly, but was clearly intent on saying nothing that could be described as being relevant. He maintained in evidence that he had not spoken to his brother about his intentions of leaving his house to his daughter and that he had not tried to persuade his brother in any way to make a will of any kind. I was reluctant to attach any weight to his evidence. Elizabeth Pirie's evidence was wholly unsatisfactory. While the pursuer was giving evidence, Miss Pirie provided an unconvincing display of simulated histrionics. When she herself gave evidence, her testimony was given with an enthusiasm which was entirely at odds with her earlier performance, and was clearly designed to provide answers which she thought might help her case, but which were often inappropriate and ill-judged. Giving full weight to her personal problems and difficulties, I found her evidence of little help. I formed the impression that she knew what was going on in her father's mind and may well have been involved in what led up to his decision to make a will, and her pretended ignorance of this did not ring true. However, while I have no doubt that she contributed to any discussions about what should happen to the house following the death of her father, I cannot say that that conclusion assists the pursuer's case.

[11] In this action the pursuer represented herself. In the earlier debate which took place in the cause, and in respect of which I issued an Opinion on 12 April 2005, the pursuer had the assistance of her daughter to help her understand the procedure and terminology being used in the legal submissions made against her by the defenders. However, it was clear to me at the proof that the pursuer has an excellent grasp of English, although her accent was at times somewhat marked. She was nonetheless readily comprehensible at all times and plainly understood everything that was going on. The defenders' agents were punctilious in the course of the proof in either providing the pursuer with copies of productions referred to, or directing her attention to the relevant copies in her own papers. I am completely satisfied that although she represented herself in this matter, the pursuer was left thereby at no disadvantage.

[12] The pursuer's case on record is based on the twin concepts of facility and circumvention, and undue influence. The averments in support of these remedies are in conventional terms. The pursuer avers that James Pirie was diagnosed with terminal cancer in the summer of 2001 and that thereafter she became his primary carer. Mr Pirie had at all times assured the pursuer that he would provide a house for her when she came to the United Kingdom, and in particular in the course of the marriage he often told her that The Old Schoolhouse would come to her. The pursuer then avers that Mr Pirie's health deteriorated significantly from the latter part of 2001 until his death on 6 March 2002; that he was dying of cancer at the time he entered into the Trust Disposition and Settlement, and that his health had declined to such an extent when he instructed Mr Copland to draw up a will that he was suffering from a facility of mind and was easily imposed upon. The pursuer further maintains that her husband was unable to appreciate the import and effect of the Trust Disposition and Settlement at the time that he entered into it. She submits that the second and third defenders took advantage of his weakness and facility of mind to suggest that he enter into the testamentary document. She points out that the defenders had the opportunity to circumvent his true wishes by their frequent attendance on him during the last stages of his life. She contrasts the terms of the Trust Disposition and Settlement with Mr Pirie's stated intentions throughout his life.

[13] Further, the pursuer maintains on record that the second and third defenders exerted undue influence on him to induce him to enter into the Trust Disposition and Settlement. She argues that the second defender was his only child and that the third defender was his brother, and that in these circumstances they were both in a semi-fiduciary relationship with him. She avers that the illness of Mr Pirie depleted his faculties to the point where he was easily influenced and relied upon the advice and guidance of the second and third defenders. He was then persuaded to make the arrangements in the Trust Disposition and Settlement which will benefit particularly the second defenders and disadvantage the pursuer. In these circumstances she seeks reduction of the will.

[14] As Lord Drummond Young noted in the case of Horne & Others v Whyte & Others (unreported, 25 November 2003) (a case relied on by counsel for the defenders), the remedies of facility and circumvention on the one hand and undue influence on the other are two separate grounds of action which are commonly run together because the evidence in support of either remedy is often similar. The most useful description of these two remedies is found in the Opinion of Lord President Clyde in Ross v Gosselin's Exrs, 1926 SC 325 (at 334):

"The essence of undue influence is that a person, who has assumed or undertaken a position of quasi-fiduciary responsibility in relation to the affairs of another, allows his own self-interest to deflect the advice or guidance he gives, in his own favour. On the other hand, the essence of circumvention and facility is that a person practices on the debility of another whose individuality is impaired by infirmity or age, and moulds the inclinations of the latter to, his own profit. .... Cases vary infinitely in their special circumstances; and there are no doubt cases in which the holding of a position of influence may be no more than an item of evidence of circumvention ...."

Accordingly in an action based on facility and circumvention, it is essential for success that mental weakness or facility is established. Once such facility is proved to exist, the averments in proof of circumvention may be less difficult to establish. Where a clear benefit accrues as a result of the intervention, that will be a significant factor in deciding whether or not circumvention has taken place. In short, where there is clear evidence of both benefit and mental debility, circumvention may thereafter more easily be proved.

[15] In cases of undue influence, a broader approach may be possible. However, as Lord President Clyde noted in Ross v Gosselin's Execs., the first requirement of such a case is that the person who benefits from the exercise must have assumed or undertaken a position of quasi-fiduciary responsibility over the affairs of the person from whom the benefit derives. But other considerations have also to be borne in mind. In Gray v Binny 1879 7 R 332, Lord Shand said (at pp. 347-348):

"The circumstances which establish a case of undue influence are, in the first place, the existence of relation between the granter and grantee of the deed which creates a dominant or ascendant influence, the fact that confidence and trust arose from that relation, the fact that a material and gratuitous benefit was given to the prejudice of the granter, and the circumstance that the granter entered into the transaction without the benefit of independent advice or assistance. In such circumstances the Court is warranted in holding that undue influence has been exercised; but cases will often occur ... in which over and above all this, and beyond what I hold to be necessary, it is proved that pressure was actually used and that the granter of the deed was in ignorance of facts, the knowledge of which was material with reference to the act he performed."

It is also clear that the category of persons to whom such relationships can apply should not be regarded as limited or closed (Honeyman's Executors v Sharp 1978 SC 223 per Lord Maxwell at 227).

[16] In these circumstances it is my view in the present case that the pursuer cannot possibly succeed in either of the cases which she makes against the defenders.

[17] The pursuer made a number of submissions throughout the course, and at the end, of the evidence. She argued that the Trust Disposition and Settlement should not be given effect to because it had the effect of defeating her statutory rights under the Matrimonial Properties Act. It was intrinsically unfair. She had enjoyed a good life and lucrative employment in Manila, and her husband had persuaded her to come to Scotland on the basis that she would always be provided with accommodation and support, and indeed had to give an undertaking to this effect to the authorities in the United Kingdom in order to sponsor her residence here. In the Philippines all of a husband's property came to the wife on his death. Her husband had frequently promised her that after he died The Old Schoolhouse would become hers because, as he said, she deserved it. She accepted that her husband had been very close to her daughter and brother, and that she had not got on with them, but she had worked throughout the marriage and supported both her husband and his daughter from the beginning. Throughout the latter part of the marriage, her husband had suffered constant pain and illness and his health had deteriorated markedly in the last three months of his life, when he was unable to look after himself. She had been left entirely in the dark about the existence of the will. He was heavily medicated in his last months and was not fit to make any kind of testamentary disposition. Her husband had not made a will when he was younger and stronger; accordingly he would not have made a will which contradicted all of his earlier promises to her when he was weak and frail unless he had been persuaded to do so. The bank should not have written his will for him when it acted both for herself and Elizabeth Pirie; that was against public policy. An independent solicitor should have been instructed to advise both her and her husband. She pointed out that she would have been better off if she had divorced her husband rather than staying to look after him. Any decision to disinherit her should have been mutual, and she should have been consulted. Much of the furniture in the house and some of the money in her husband's bank account was hers. As a result of the will, Elizabeth Pirie had been unjustly enriched at her expense over a period of fifteen years. To make her homeless was a major criminal act. The Court should strike the will down. She had been robbed and cheated and made homeless. In conclusion she argued that her husband had been too ill and lacked sufficient capacity to instruct the Trust Disposition and Settlement in January 2002.

[18] In response Mr Robertson for the second and third defenders, after a careful examination of the relevant authorities, submitted that the pursuer simply had not produced any evidence of either facility or circumvention, or alternatively of undue pressure. There was no evidence in the case that demonstrated that Mr Pirie was in any way facile at the time when gave his testamentary instructions. On the contrary all of the evidence from the neutral witnesses made it clear that he was mentally independent and clear minded and had a specific and understandable reason for acting as he did. In particular, the medical witnesses from his general practice saw no evidence of any mental deterioration in the last months of his life. What Mr Pirie was trying to do was find a way out of what he saw was a difficult situation for his daughter. There was no evidence of facility other than from the pursuer, and the only possible evidence of circumvention came from the inference from that the testator changed his mind at a late stage in his life.

[19] Equally, counsel submitted that the case for the exercise of undue influence had not been made out. Clearly there was a relationship between Mr Pirie and his daughter but there was no suggestion that that relationship created a dominant or ascendant influence, or that a particular relationship of confidence and trust arose in circumstances where it would not otherwise have done. While the second defender enjoyed a material benefit, it cannot be said to have been gratuitous. Miss Pirie had a proper claim on her father's disposition of his assets. In particular, there was no evidence of any kind that pressure was in fact applied by either of the defenders to the deceased.

[20] Accordingly, while much of what the pursuer claimed cannot be gainsaid, it is unfortunately for her the case that the evidence does not support the conclusions and remedy which she seeks. Firstly, I have no doubt on the evidence that the testator, James Pirie, knew exactly what he was doing when he gave instructions for the drawing up of his testamentary deed and was the prime mover in deciding to disinherit his wife. I have equally no doubt that he may have listened to the views of his daughter and his brother, but the clear decision which he made to cut off his wife, who had financially supported and looked after him for fifteen years, whom he had promised he would look after, and to whom he had promised to leave his house, was one which he took consciously and in full contemplation of the consequences.

[21] He was not at the relevant time facile nor was his will circumvented; he merely decided to benefit his daughter at the expense of his wife. Indeed, despite all that his wife had done for himself and his daughter over the years, his plain intention was to exclude his wife from the house after his death, despite his earlier promises; Mr Copland had advised him that he could have granted a liferent to either his wife or his daughter, which would have allowed the both of them to remain in the house, but he chose not to follow that course. Apart from the pursuer's claims, which were general, imprecise and essentially retrospective in character, all of the other evidence, particularly from Mrs Hislop and the deceased's general practitioners, indicated that at all material times Mr Pirie was in full possession of his mental powers. All this confirms that he knew exactly what he was doing when he instructed his Trust Disposition and Settlement, that there was no question of facility, and that there was no need for the circumvention of his intentions.

[22] Secondly, the case for undue influence was not made out. The relationship between Mr Pirie and the second defender was undoubtedly a strong one, and the need for the father, as he saw it, to protect his daughter was probably the determining factor in Mr Pirie's decision to make a will. But it cannot be said that the daughter held a dominant ascendancy over her father, nor that the consequent benefit to the second defender conferred by her father's testamentary deed was unexpected or gratuitous. Further, although with the benefit of hindsight it might have been more appropriate for Mr Copland to have suggested that Mr Pirie take independent legal advice, I have no doubt that he provided his customer with details of all the various available testamentary choices. Accordingly, while it is easy to see that the pursuer feels that she has been the victim of a monstrous and callous injustice, it is impossible to find on the evidence that any legal remedy can be available to her.

[23] I therefore have to sustain the third plea-in-law for the defenders and repel the pursuer's pleas. The expenses will follow success.