Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES & GALLOWAY AT HAMILTON

 

Case Number: A1186/08

DECISION OF SHERIFF THOMAS McCARTNEY

 

I.C.

 

 

JOYCE PRICE residing at 6 Armstrong Crescent, Uddingston G71 6TF

..............................................................FIRST NAMED PURSUER

 

and

 

ISABELLA BAXTER residing at 26 Fife Crescent, Bothwell, G61 8EG

..........................................................SECOND NAMED PURSUER

 

and

 

ALAN BAXTER, residing at Flat 3-1, 56 Ashley Street, Glasgow G3 6HW

...........................................................THIRD NAMED PURSUER

 

and

 

JOHN BAXTER, residing at 7 Kirkhill Street, Netherton, Wishaw ML2 0AY

....................................................FOURTH NAMED PURSUER

 

against

 

CHARLENE MARY ANDERSON or BAXTER, residing at 30 The Fairways, Bothwell G71 8PA

.....................................................................DEFENDER

 

Hamilton, March 2009

The sheriff, having heard parties in debate, sustains the Defender's First and Second Pleas in Law and dismisses the action; Finds the Pursuers liable to the Defender in the expenses of the action and allows an account thereof to be given in; Remits the same when lodged to the Auditor of Court to tax and to report; and certifies the cause as suitable for the employment of junior counsel.

 

 

Note :

The Pursuers are relatives of the late Peter McNaughton Baxter ("Mr Baxter"). Mr Baxter died on 7^th April 2008. The Defender is the widow of Mr Baxter.

Mr Baxter executed a Will dated 29^th August 1999. In terms of the Will Mr Baxter left his entire estate, heritable and moveable, to the Defender in the event that she did not pre-decease him. In terms of the Will, Mr Baxter appointed the Defender to be his executor in the event that she did not pre-decease him. Mr Baxter did not make any subsequent Will.

Mr Baxter and the Defender married on 26 July 1990. They separated on 10^th December 2005. They entered into a Minute of Agreement dated 24^th and 31^st October 2007 and registered in the Books of Council and Session for preservation and execution on 26^th March 2008 ("the Minute of Agreement"). They did not divorce.

The preamble to the Minute of Agreement was as follows:

"WHEREAS the parties were married at Bellshill on the 26^th of July 1990 and separated on the 10^th of December 2005 and whereby the parties are desirous to regulate financial and other matters with a view to divorce, therefore, the parties, having taken separate and independent legal advice have agreed and do hereby agree as follows:"

The Minute of Agreement provided inter alia as follows:

"10. The parties are agreed that the terms of this Agreement once implemented represent a full and final settlement of all financial claims arising from the breakdown of their marriage and both parties hereby renounce and discharge for all time coming all and any rights that they have or may have against the other or against the Executors or Assignees of the other whether on divorce or otherwise, to any other Capital Sum, property transfer order or aliment for himself or herself or periodical allowance of whatever nature, whether under common law or statute, either on Divorce, death or bankruptcy, and without prejudice to the foregoing generality, any claim in terms of the Divorce (Scotland) Act 1976 or any amendment or re-enactment thereof or in terms of the Family Law (Scotland) Acts 1985 and 2006 or any amendment or re-enactment thereof, including any rights in or to Pensions, superannuation or similar schemes or Life Policies pertaining to the other party. This provision shall continue to apply irrespective of any alteration in the circumstances of either party. The provisions of this Agreement shall remain in full force and effect notwithstanding any Decree of Divorce, which may follow hereon at the instance of either party and notwithstanding the temporary resumption of cohabitation for any period of time with a view to reconciliation should such reconciliation fail.

11. Both parties hereby renounce and discharge for all time coming his or her respective legal rights of jus relicti and jus relictae and also any prior rights and other rights of succession which may arise on the death of the other party under the Succession (Scotland) Act 1964 or any amendment or re-enactment thereof or at Common Law, and they hereby discharge each other's Executors accordingly."

In the present action the Pursuers seek Declarator that Mr Baxter died intestate, Declarator that the Defender by virtue of the Minute of Agreement renounced any and all claims against Mr Baxter including any claims arising on death, Declarator that the estate of Mr Baxter should be distributed according to the rules of intestate succession in terms of the Succession (Scotland) Act 1964 but without the Defender being entitled to any benefit and Interdict against the Defender from seeking to be confirmed as executrix or otherwise intromitting with the estate.

The action proceeded to debate before me on 17^th December 2008 and 9^th February 2009 in relation to the preliminary pleas of each party. The Pursuers were represented by Mr Grant, solicitor. The Defender was represented by Ms Brabender, advocate.

Submissions for Defender

Miss Brabender's primary submission was that the action should be dismissed as the Pursuers' averments as to, firstly, revocation of the Will and, secondly, renunciation and discharge of any rights to inherit or to be executor in terms of the Will were irrelevant. Her secondary position was that in the event that the Will had not been revoked a Proof Before Answer would be appropriate in respect of the issue of renunciation and discharge of rights in terms of the Will due to a factual dispute as to whether the Minute of Agreement had been implemented in full.

Crave 1- Revocation of Will.

Ms Brabender submitted that to ascertain whether the averments as to revocation of the Will were relevant it was necessary to look at what could revoke a pre-existing valid Will. Express revocation could take place by physical destruction or by a clause of revocation included in a subsequent deed executed with testamentary formalities. There were no averments that the Will had been physically destroyed. The Pursuers relied upon the Minute of Agreement as expressly revoking the Will. However, there was no mention of the Will in the Minute of Agreement and therefore it could not be deduced that the Minute of Agreement was intended to revoke the Will. The Minute of Agreement did not contain any testamentary intention and there was nothing that referred to prior testamentary writings. Testamentary formality required signature on each page. The Minute of Agreement had not been signed on each page, merely initialled. Therefore the Minute of Agreement could not be said to have expressly revoke the previous Will.

Ms Brabender then submitted that the Minute of Agreement could not amount to implied revocation of the Will. However, Mr Grant subsequently indicated that he was relying on express revocation and was not arguing that there had been any implied revocation in the absence of a subsequent Will or expression of testamentary intention.

In summary Ms Brabender's submission in relation to Crave 1 was that the Minute of Agreement did not expressly revoke the prior Will was not testamentary in nature and contained no provision for the estate of Mr Baxter. The Pursuers could not succeed in discharging the onus on them to prove that the Will had been revoked by the Minute of Agreement. Therefore the averments in respect of Crave 1 were not relevant and Crave 1 should be dismissed.

Crave 2 - Renunication and Discharge of Claims

Ms Brabender submitted that the Pursuers relied upon Clauses 10 and 11 of the Minute of Agreement in support of their contention that the Defender had renounced and discharged any claims. She submitted that with regard to Clause 10 all that could be said was that the Defender had renounced or discharged any claims arising from the breakdown of the marriage. It does not extend to claims which arise otherwise. For example if delictual liability had arisen from a road traffic accident, Clause 10 could not be said to have discharged a delictual claim. The wording of Clause 10 referred back to claims arising on the breakdown of the marriage and could not be read as imposing any obligation to decline a mortis causa gift or appointment as executor.

It was submitted that Mr Baxter's Will was ex facie valid and left his estate to the Defender. All the Defender would be doing was accepting a gift made mortis causa. She was not exerting any claim. No express or implied discharge against accepting a mortis causa gift was contained in Clause 10. Acceptance of a bequest was not a capital sum, transfer order, aliment or periodical allowance, being the rights discharged by Clause 10.

Ms Brabender submitted that the cases of Mannai Investment Co Ltd -v- Eagle Star Life Assurance Co. Ltd, Scrabster Harbour Trust -v- Mowlem plc and City Wall Properties (Scotland) Ltd -v- Pearl Assurance plc to which the Pursuers would refer in relation to interpretation of contracts were commercial cases from which it could be taken that commercial contracts should be interpreted in a way that gives effect to the parties' intention on entering the contracts. Ms Brabender took no issue with those cases but stated that the terms and purpose of the Minute of Agreement in this case were clear which was that the terms were in full settlement of claims arising from the breakdown of the marriage.

If it was argued that the court should look behind Clauses 10 and 11 to ascertain the parties' intention, the Pursuers would require to have averred what those intentions were and provided specification thereof. There were no such averments. Therefore having regard to the clear terms of Clause 10, and the absence of any other averments, the pleadings in support of Crave 2 based upon Clause 10 of the Minute of Agreement were irrelevant.

With regard to Clause 11 of the Minute of Agreement, Ms Brabender detailed the various Parts of the Succession (Scotland) Act 1964 (the "1964 Act") and submitted that none of the provisions of the 1964 Act related to acceptance by the Defender of a gift mortis causa. The acceptance of a gift mortis causa was not a right of succession at common law. The reference to "common law" was a catch-all to take account of the possibility of the 1964 Act being repealed. It could not be that common law rights included gifts made in terms of a Will.

Ms Brabender submitted that the making of a Will was a unilateral act and the maker could provide as he wished. It could not be the case that if Mr Baxter had made a new Will after the Minute of Agreement which included a bequest to the Defender, the Defender would be unable to accept that gift because of the terms of Clause 11. That could not be right as it would limit Mr Baxter's ability to dispose of his estate as he wished. The discharge in Clause 11 did not impose an obligation to refuse to accept a gift mortis causa or act as executor. Therefore the Pursuers' averments in support of Crave 2 relying as they did on Clauses 10 and 11 of the Minute of Agreement were irrelevant whether or not the Minute of Agreement had been implemented in full.

 

Crave 3 and 4 - Estate to be Distributed According to the Rules of Intestate Succession and appointment as executor

 

Ms Brabender submitted that if Crave 3 was dependent on Crave 1, if the averments were irrelevant in respect of Crave 1, they were similarly so in respect of Crave 3. If Crave 3 was an alternative to Crave 1, even if the Defender had renounced her rights in terms of Crave 2, it did not follow that the estate should be distributed in accordance with intestacy. All that would mean was that the defender could not accept any mortis causa gift. There were no averments that the Defender had renounced her right to appointment as executor other than where the Will was revoked. If Crave 3 was dependent upon Crave 2, it was also irrelevant for want of any averments at all in support of it.

Pursuers' Preliminary Pleas

Miss Brabender submitted that if a Proof Before Answer was allowed, evidence as to advice given by Mr Baxter's solicitor would be relevant as to the intention of the parties and that the Defender's averments contained ample specification. It was submitted that since the Pursuers' position was that the Will was expressly revoked the averments as to testamentary intentions were relevant.

Authorities

In the course of her submission, Ms Brabender referred to the following authorities:

Stair Memorial Encyclopaedia - Volume 25, paragraphs 736, 740, 746 and 748 - 750

Gordon's Executors -v- MacQueen - 1907 SC 373

Duthie -v- Taylor - 1986 SLT 142

Colvin -v- Hutchison - 1885 12R 947.

Paterson -v- Paterson 1893 20R 484

Hutchison -v- Graham's Executrix 2006 SCLR 587

Redfern's Trustees -v- Redfern 1996 SLT 900.

The Pursuers' Submission

Revocation of Will and Renunciation of Rights

Mr Grant submitted that a Proof Before Answer should be allowed. While he acknowledged that there may be evidential difficulties, he submitted that it was not appropriate to dispose of the action without proof. The intention of the parties in entering the Minute of Agreement should properly be considered.

Mr Grant submitted that a contractual document such as the Minute of Agreement was capable of revoking a Will. It was not disputed that Mr Baxter had the power and capacity to revoke the Will. It was not disputed that the Minute of Agreement was subsequent to the Will.

While the Minute of Agreement had not been signed on every page, Mr Grant submitted that in terms of the Requirements of Writing (Scotland) Act 1995, the only formal requirement was that the Will be signed. Signature on each page was only required to invoke the statutory presumption that the Will had been signed by the granter. He referred to the Requirements of Writing (Scotland) Act 1995, Section 1 (2), Section 2 (1) and Section 3 (2).

Mr Grant submitted that it was not necessary that the subsequent deed contain alternative proposals for the estate in order to revoke a previous Will. The Minute of Agreement was capable of representing a universal settlement of the estate by revoking the prior Will and allowing the estate to be dealt with by the law of intestate succession but without sums passing to the Defender.

He submitted that the Minute of Agreement had to be looked at as a writing that Mr Baxter had made for the purpose of regulating his personal estate. He submitted that Clauses 10 and 11 of the Minute of Agreement contained elements of testamentary intention in that there was a clear indication that neither was to receive any further sums from the other. The language of the Minute of Agreement was such as to expressly revoke the Will. There was reference to full and final settlement and a discharge of all rights arising on death. The intention of the Minute of Agreement was not only to revoke the previous Will but also to ensure that on death sums did not pass to the Defender.

Although the Minute of Agreement did not contain specific words such as "I revoke previous Wills" that does not mean that the Minute of Agreement could not be read as intending that prior Wills be revoked. He submitted that the court should adopt a purposive approach and therefore the Minute of Agreement had to be looked at in relation to the intention of the parties when it was entered. It was only by hearing evidence that the court could determine if the Minute of Agreement was intended to and did revoke the Will. A Proof Before Answer was required in order to ascertain the intention of the parties on entering the Minute of Agreement.

Pursuers' Preliminary Pleas

Mr Grant submitted that the averments by the Defender as to advice given to Mr Baxter by his agent were irrelevant as the solicitor's interpretation of the law was of no consequence. Those averments were contrary to the Defender's position that the matter could be disposed of at Debate. He pointed out that the Defender avers that the Minute of Agreement was not implemented. If the Defender was relying on that, a Proof Before Answer would be needed as that is a matter of factual dispute. He submitted that it was irrelevant whether by entering the Minute of Agreement the parties intended to bequeath their estates. It is not the Pursuers' position that the Minute of Agreement was a Will but an intention to bequeath estate was not necessary for the Minute of Agreement to revoke the Will.

Authorities

In the course of his submission Mr Grant referred to the following authorities:

Stair Memorial Encyclopaedia - Volume 25, paragraph 746

Gloag & Henderson - "The Law of Scotland" paragraph 44.7

Stoddart -v- Grant - 1849 11D 860

Gordon's Executor -v- MacQueen 1907 - SC 373

Mannai Investment Co Ltd -v- Eagle Star Life Assurance Co. Ltd 1997 AC749

McBryde - "The Law of Contract in Scotland" 3rd edition - Paragraphs 8.03 and 8.22

Scrabster Harbour Trust -v- Mowlem plc 2006 SLT 250

City Wall Properties (Scotland) Ltd -v- Pearl Assurance plc 2007 SCIH 79

Redferns Trustees -v- Redfern 1996 SLT 900

Duthie-v- Taylor 1986 SLT 142

Colvin -v- Hutchison - (1885) 12R 947

 

Decision

Revocation of Will by Minute of Agreement.

The Pursuers' first crave is for a declarator that Mr Baxter died intestate. This crave depended upon there being relevant averments which if proven would establish that the Will had been expressly revoked by the terms of the Minute of Agreement.

The Pursuers do aver in condescendence 4 at lines 159 - 162 as follows:

"the Minute of Agreement intended to and did revoke the Will. The Minute of Agreement is inconsistent with the Will, was intended to revoke the Will, and was entered into with testamentary formalities."

It is further averred in condescendence 5 lines 228 - 230 as follows:

"The Minute of Agreement was entered into with testamentary formalities. By virtue of entering the Minute of Agreement Peter Baxter intended to and did revoke the Will."

The Minute of Agreement is incorporated in the pleadings brevitatis causa by the Pursuers and therefore regard requires to be had to its terms in assessing the issue of relevance.

In the course of submissions both parties referred to paragraph 746 of Volume 25 of the Stair Memorial Encyclopaedia as to the manner in which a Will may be expressly revoked. Paragraph 746 is as follows:

" Express clause of revocation generally. Assuming power to revoke, a will may also be expressly revoked if the testator declares the revocation in a subsequent deed executed with testamentary formalities. This subsequent deed need not itself contain alternative provisions for disposal of the estate (in which case total or partial intestacy would usually be the result), but it is essential that it be validly executed as a will. No particular form of words is necessary, provided that an intention to revoke former wills can fairly be deduced from the language used. The onus of proving the revocation of an ex facie valid will lies upon the person asserting it."

Having regard to this paragraph it is the case that it is not disputed that Mr Baxter had power to revoke the Will and that the Minute of Agreement was subsequent to the Will.

I agreed with Mr Grant's submission regarding the form of the subsequent deed in respect that to revoke a prior Will it would not be necessary for the subsequent deed to be signed on each page. That was a requirement of testamentary formality prior to The Requirements of Writing (Scotland) Act 1995. In terms of the 1995 Act the only requirement for a Will is that it is in writing and is signed. The effect of being signed on each page relates to the acquisition of self proving status. I noted that the volume of Stair Encyclopaedia to which I was referred was published prior to the 1995 Act. Therefore I considered that there was nothing in the manner of execution of the Minute of Agreement which would prevent it revoking a prior Will if the intention to revoke the prior Will could fairly be deduced from the language used.

I did not consider that an intention to revoke a prior Will could fairly be deduced from the language used in the Minute of Agreement. The purpose of the Minute of Agreement was set out in the preamble as being "to regulate financial and other matters with a view to divorce." It did not bear to be a document setting out testamentary intention. No assistance for the Pursuers' case on express revocation was found within the terms of either Clause 10 or 11 of the Minute of Agreement, being the clauses upon which the Pursuers relied. The terms of each clause were directed at renouncing and discharging claims which Mr Baxter had against Mrs Baxter and vice versa and there was nothing in the language used in Clauses 10 or 11 from which an intention to revoke a former Will or set out present testamentary intention could fairly be deduced.

Mr Grant had submitted that the Minute of Agreement was capable of representing a universal settlement of the estate if it revoked the prior Will and allowed the estate to be dealt with by the law of intestate succession. However the Will did more than make provision for the Defender. It provided for the distribution of the estate to other beneficiaries in the event of the predecease of the Defender. Those other potential beneficiaries were not parties to the Minute of Agreement and it is impossible to regard the Minute of Agreement as having revoked those provisions of the Will in the event that the Defender had predeceased Mr Baxter. Of course, those alternative beneficiaries appear to be the Pursuers in the present action, but they need not have been. Therefore the Pursuers' proposition would come to that the Minute of Agreement somehow revoked the Will insofar as it made provision for the Defender. As indicated above, it simply did not do so.

In relation to Mr Grant's submission that there should be "a purposive approach" as to interpretation of the Minute of Agreement based upon evidence as to intention, I did not consider that to be appropriate in relation to the issue of revocation of the prior Will. In order to revoke the prior Will, the Minute of Agreement required to have testamentary intent at least to the extent that it intended to revoke the prior Will. If that was the case, the appropriate approach to interpretation was that applied in respect of wills and not to interpretation of contracts. I had been referred to Chapter 44 of Gloag and Henderson and I note that at Paragraph 44.11 the approach to interpretation of wills and use of extrinsic evidence is set out as follows:

"In construing a testamentary deed it is the object of the court to ascertain and give effect to the intention of the testator. That intention is to be collected from the language of the deed read in the light of those circumstances (such as the state of the testator's family and property) known to the testator and with reference to which he has written his deed; and it is not permissible to search for his intention apart from the terms of his deed. Evidence of the testator's own opinion of the effect of his will is incompetent, and it is doubtful whether revoked writings can be used as an aid to construction."

In the case of Gordon's Executor -v- MacQueen 1907 SC 373 which was referred to, Lord Stormont-Darling stated: "It {revocation} is not to be inferred by mere conjecture, but by a comparison of the documents, clause by clause; and if the will said to be revoked is not named or clearly identified , it must be taken as wholly or partially regulating the succession, so far as not inconsistent with subsequent instruments"

In relation to the issue of revocation of the will, I did not consider that there were averments as to circumstances on which extrinsic evidence was admissible and the matter required to be determined from the language of the deed.

Although the Pursuers do aver in terms that the Minute of Agreement did revoke the Will the averments in support of crave 1 are not relevant if the terms of the Minute of Agreement which had been incorporated in the pleadings were such that it was not possible to deduce fairly an intention to revoke former Wills from the language used. I do not consider that there was any express revocation in the Minute of Agreement. In both Clause 10 and Clause 11 each party renounced and discharged rights against the other and their executors and assignees. There was nothing in either clause which could fairly be deduced to be a revocation by Mr Baxter of his own Will or setting out present testamentary intention.

Renunciation and Discharge of Claims

Mr Baxter died on 7^th April 2008. In terms of his Will dated 29^th August 1999 he left his entire estate to the Defender who survived him. He also appointed the Defender to be executor.

In terms of Section 14 of the Succession (Scotland) Act 1964 the whole of his estate, whether heritable or moveable, vests in the executor for the purposes of administration by virtue of Confirmation thereto. The Defender as sole beneficiary in terms of the Will acquired on Mr Baxter's death a personal right against the executor (who happened to be herself). The rights as beneficiary and to be appointed as executor are rights which can be renounced. For example a beneficiary under a Will cannot take legal rights as well as a legacy from the estate of a deceased and has to chose either to renounce the legacy and accept legal rights or discharge the legal rights and accept the legacy. Therefore I consider that upon the death of Mr Baxter the Defender acquired rights in terms of the Will of Mr Baxter which she could renounce or discharge. The issue then was whether in terms of the Minute of Agreement the Defender had renounced or discharged the rights acquired in terms of the Will of Mr Baxter.

The submission for the Pursuers was that a Proof Before Answer was appropriate in order to ascertain the intention of the parties upon entering the Minute of Agreement. A difficulty with that submission was that on considering the Pursuers' averments, I found that there were no averments as to surrounding circumstances which would form the basis for evidence. Indeed where the Defender makes averments as to surrounding circumstances, these are met with the response of "not known and not admitted."

In the absence of averments of surrounding circumstances which could assist in the interpretation of the Minute of Agreement, I consider that the matter has to be decided based upon the terms of the Minute of Agreement itself and in particular Clauses 10 and 11.

Clause 10

Clause 10 starts:

"10. The parties are agreed that the terms of this Agreement once implemented represent a full and final settlement of all financial claims arising from the breakdown of their marriage and _ _ _ _ _ "

This sets out an acceptance by both parties that the terms of the agreement are in full settlement of all financial claims arising from the breakdown of the marriage. It does not refer to rights arising from the will of the other. However I did not consider that this had the effect of limiting the renunciation and discharge which followed given the use of the word "and".

Clause 10 continues:

"- _ _ _ _ both parties hereby renounce and discharge for all time coming all and any rights that they have or may have against the other or against the Executors or Assignees of the other whether on divorce or otherwise_ _ _ _"

Those words if standing alone are broad in their terms. However they have to be read with the words which follow which restrict the generality of what is renounced and discharged. What is renounced and discharged is all and any rights to:

"_ _ _ _any other Capital Sum, property transfer order or aliment for himself or herself or periodical allowance of whatever nature, whether under common law or statute, either on Divorce, death or bankruptcy, and without prejudice to the foregoing generality, any claim in terms of the Divorce (Scotland) Act 1976 or any amendment or re-enactment thereof or in terms of the Family Law (Scotland) Acts 1985 and 2006 or any amendment or re-enactment thereof _ _ _ _ "

There is no doubt that the terms of this renunciation and discharge extend to any rights to financial provision on divorce. It is a renunciation and discharge of all and any rights to any other capital sum, property transfer order or aliment or periodical allowance. A capital sum, property transfer order and periodical allowance are orders for financial provision on divorce in terms of the Family Law (Scotland) Act 1985. A right to aliment arises in terms of the Family Law (Scotland) Act 1985. In terms of Section 1(3) of that Act any obligation of aliment arising under a decree or by operation of law ceased to have effect as from the commencement of the 1985 Act. I take the inclusion of the words "whether on divorce or otherwise" to reflect that a claim for aliment, unlike a claim to a capital sum, property transfer order or periodical allowance, is not a claim arising on divorce, but exists in consequence of the parties being spouses.

The question is whether the words : "whether on divorce or otherwise" and the words "whether under common law or statute, either on Divorce, death or bankruptcy, and without prejudice to the foregoing generality_ _ _ _ " extend the ambit of the renunciation and discharge.

On initial reading the inclusion of these phrases give the impression of a wide reaching discharge. I have concluded that to be a wrong impression. My analysis of clause 10 is that it could not reasonably be read as extending beyond a renunciation and discharge of any rights to

1.any other capital sum, property transfer order, aliment or periodical allowance of whatever nature, whether under common law or statute.

2, any claim in terms of the Divorce (Scotland) Act 1976 or any amendment or re-enactment thereof

3. any claim in terms of the Family Law (Scotland) act 1985 and 2006 or any amendment or re-enactment thereof .

The words "without prejudice to the foregoing generality" are misleading as the foregoing was not general but was quite specific in restricting the discharge to any other capital sum, property transfer order, aliment or periodical allowance. I did not consider that the ordinary meaning could extent to rights arising from the express terms of the Will of the other. I concluded that had it been intended that neither party would accept any bequest in terms of the Will of the other, this could have been expressly stated and it was not.

Mr Grant had submitted that a purposive approach to interpretation of the contract was appropriate. Reference was made to McBryde - "The Law of Contract in Scotland". In paragraph 8-06 it is stated that the court should not redraft the contract and that there must be a construction not a reconstruction of the contract. I have concluded that to interpret Clause 10 as containing a renunciation and discharge of claims arising from the Will of the other would indeed be a reconstruction of the contract.

 

Clause 11

"11. Both parties hereby renounce and discharge for all time coming his or her respective legal rights of jus relicti and jus relictae and also any prior rights and other rights of succession which may arise on the death of the other party under the Succession (Scotland) Act 1964 or any amendment or re-enactment thereof or at Common Law, and they hereby discharge each other's Executors accordingly."

Clause 11 makes no express reference to rights of succession arising in terms of the Will of the other. Rights acquired by testamentary provision are not legal rights of jus relicti or jus relictae. Nor are they prior rights or rights of succession under the Succession (Scotland ) Act 1964. Therefore if rights arising in terms of a Will are renounced and discharged by Clause 11, they have to be rights of succession arising "at Common Law". I again concluded that had it been intended that neither party would accept any bequest in terms of the Will of the other, this could have been expressly stated and it was not. I did not consider that the ordinary meaning of the words "at common Law" could extent to rights arising from the express terms of the Will of the other.

The difficulty with the submission that the Defender had renounced any claim to any rights arising from a Will of Mr Baxter is demonstrated by the

acceptance by Mr Grant that there was nothing in the Minute of Agreement which would have affected the Defender's rights to any inheritance arising from a Will of Mr Baxter subsequent to the Minute of Agreement. I could not find any basis within the Minute of Agreement for making a distinction based upon the date of the Will.

I considered the decision of Lord Cameron of Lochbroom in the case of Redfern's Executors v Redfern 1996 SLT 900. In that case a clause in a Minute of Agreement provided that "neither party shall have any claim of any nature against the other either now or at any time in the future and the parties hereby relinquish all rights in succession to the estate of the other party in the event of the death of either of them." It was held that the effect of that clause was that each party had voluntarily waived the bar to evacuation incorporated in a special destination in the title to heritable property. In passing, I noted that that case was decided based upon procedure roll debate without any evidence. I considered that the discharge in the Redfern case was general in its terms and therefore wider in its scope that the renunciation and discharge in the Minute of Agreement being considered by me. The issue turns upon the actual terms of the Minutes of Agreement which were quite different in each case.

Appointment as Executor

Having decided that Mr Baxter's Will has not been revoked and the Defender has not renounced any rights arising in terms of Mr Baxter's Will it follows that she is entitled to appointment as executor in terms of the Will.

Interdict

Standing my decision in relation to revocation, renunciation and discharge, it follows that the averments in support of the crave for interdict are irrelevant.
Pursuers' Preliminary Pleas

Had I considered that a Proof Before Answer was appropriate in respect of the issue of interpretation of the terms of Minute of Agreement, I consider that a Proof Before Answer would have been appropriate in relation to the Defender's averments as on the face of it being relevant averments in relation to the surrounding circumstances.

Conclusion

For the foregoing reasons, I have sustained the Preliminary Pleas Numbers 1 and 2 for the Defender and dismissed the action.

Expenses

Having found in favour of the Defender, there is no reason to depart from the normal rule that expenses follow success and therefore I have found the Defender entitled to expenses. I was asked to certify the cause as suitable for junior counsel on the basis that the case raised issues of some complexity with no authority directly in point. I considered that to be the case and so certified.