WILLIAM BARCLAY GRANT'S EXECUTORS v. WILLIAM GRANT
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LORD REED in the cause WILLIAM BARCLAY GRANT'S EXECUTORS Pursuers; against WILLIAM GRANT Defender: ________________ |
Pursuers: Haddow, Q.C., Nicol; John G Gray & Co, S.S.C.
Defender: Kelly; Drummond Miller, W.S.
29 October 1999
This action is brought by Mrs Marilyn Grant ("the first pursuer"), formerly known as Marilyn MacDonald, and Mr Frank Lefevre as executors of the late William Barclay Grant ("the deceased"), who died on 16 July 1998. The action was originally raised by the deceased himself in 1994, and was continued by his executors after his death. The defender William Grant is the deceased's eldest son, and the first pursuer's step-son. The action seeks the reduction of a disposition dated 1 April 1993 granted by the deceased in favour of the defender. A second conclusion, for reduction of a disposition dated 8 April 1993 by the deceased and the defender, as trustees for the firm of W. B. Grant & Son, in favour of the defender, appears in the pleadings as printed; but that conclusion was in fact deleted by amendment at an earlier stage of the proceedings.
It may be helpful to begin with a chronology of the principal events forming the background to these proceedings. The deceased was born on 10 March 1930. His first wife was Margaret Grant, who died in November 1988. They had a number of children, including two sons, William (the defender) and Alexander. The deceased was a farmer. When the defender grew up he worked with his father. When Alexander grew up he moved away to Aberdeen. In 1979 the deceased and his first wife bought a farm at Boat of Garten which they had rented since 1957. Shortly afterwards they conveyed most of the farm to the deceased and the defender as trustees for a partnership which they had formed, known as W. B. Grant & Son. The deceased and his first wife retained in their own hands the farmhouse, known as Mains of Garten, and certain land. In addition to the farm at Boat of Garten, the deceased as an individual was also the tenant of a croft known as Toum. The deceased and his first wife lived in the farmhouse at Mains of Garten. The defender and his wife, Lyn, lived in another house on the farm, known as Beechgrove. A number of chalets were built on the land retained by the deceased and his first wife and were let out, particularly as holiday lets. There were other chalets on the farmland, which were also let out.
In 1988 Margaret Grant died. Following her death, the deceased continued to live at Mains of Garten. He had a succession of housekeepers. In 1991 he executed a will in which he appointed the defender and a solicitor named Craig Wood as his executors. The will provided for a legacy of £20,000 to Alexander, and bequeathed the residue of the deceased's estate to the defender. It was witnessed by Craig Wood's partner, Iain Innes, and by a cashier in their firm, Sutherland & Co of Inverness. On 13 February 1993 the deceased suffered a stroke and was admitted to Raigmore Hospital. His housekeeper at that time was the first pursuer, a woman considerably younger than himself. On 25 February 1993 the first pursuer was dismissed. On 17 March 1993 the deceased was transferred to the Ian Charles Hospital in Grantown-on-Spey, which was the local cottage hospital. On 1 April 1993 he signed a disposition of the farmhouse, Mains of Garten, in favour of the defender, reserving a liferent to himself and his assignees. That is the disposition whose reduction is sought in the present action. The disposition bore to be in consideration of "love, favour and affection". The date of entry was 1 April 1993. The deceased's execution of the disposition was witnessed by Iain Innes and by Lyn Grant (the defender's wife). The disposition was recorded on 9 June 1993. On 8 April 1993 the deceased signed, along with the defender, as trustees for the firm of W. B. Grant & Son, a disposition of most of the farm in favour of the defender. The disposition bore to be in consideration of "certain good and onerous causes". It excluded an area of about half an acre, with a right to use an access road to that area from the public road. The date of entry was 8 April 1993. The execution of the disposition was witnessed by Iain Innes and by a lady named Janetta Mackenzie. The disposition was recorded on 19 November 1993. On the same day as that disposition was executed (8 April 1993) the deceased also executed a codicil to his will, in terms of which the legacy of £20,000 to Alexander was to be paid over five years at the rate of £4,000 per annum. The codicil also was witnessed by Iain Innes and Janetta Mackenzie. The deceased also signed that day a letter of resignation as a partner in the firm of W. B. Grant & Son. On 10 May 1993 the deceased was discharged from hospital. On 17 June 1993 the deceased and the first pursuer were married.
In 1994 the present action was raised by the deceased against the defender. As originally pleaded, the action sought the reduction of both the disposition of the farmhouse and the disposition of the farm. Arbitration proceedings were also begun by the deceased against the defender relating to the dissolution of the partnership. In those proceedings it was accepted by both parties that the partnership had been dissolved on 5 April 1993. The arbitration also proceeded on the basis that the deceased would not continue to challenge the disposition of the farm.
On 19 May 1998 the deceased executed a will bequeathing his estate to the first pursuer, whom failing to her children. The will expressly declared the deceased's desire that no part of his estate should fall to either of his sons William and Alexander, and that no member of the Grant family other than the first pursuer should benefit from his estate. That will had the effect of revoking the 1991 will and the 1993 codicil. As I have mentioned already, the deceased died on 16 July 1998.
In her evidence, the first pursuer stated that she had first met the deceased in December 1991. She had moved down from Shetland, where she had been working as a flying instructor, and was looking for temporary accommodation in the Spey Valley. She went to look at the holiday chalets at Mains of Garten, and met the deceased. He offered her a chalet, and told her that he was looking for a shepherdess or a housekeeper. That proposal appealed to her, as her first husband had been a farmer. She moved into one of the chalets in January 1992, and worked for the deceased part-time as a shepherdess once the lambing began. She also worked part-time as a flying instructor. In April 1992 she moved into the farmhouse as the deceased's housekeeper, again on a part-time basis. In May 1992 the deceased asked her to marry him, but she declined as her divorce had not yet been completed and she did not feel ready to re-marry. She did not tell anyone of the proposal at that time, but subsequently told her daughter, Karen Pass. She continued to live in the farmhouse, as the deceased's housekeeper, until his illness in February 1993.
On the evening of 12 February the deceased was ill. Early the following morning he became violently sick and paralysed. The first pursuer called an ambulance at about 6.00am and also called the defender, who joined her. The ambulance arrived and took the deceased to Raigmore Hospital. As soon as the deceased was in the ambulance, the defender put her under pressure, telling her that she would not want to be around for his father, and that it would not be advisable for her to remain at Mains of Garten. She responded that she would be around for his father coming out of hospital. It was clear that the defender did not approve. Thereafter there was a very bad atmosphere between herself and the defender and his wife, Lyn. While the deceased was in Raigmore, she visited him every day unless she was away. She was more or less ignored there by the defender, Lyn and Alexander. She found the deceased to be depressed. His left side was affected, and his speech was slurred. On 23 February she told the deceased about the pressure she was coming under from the defender. The deceased told her to stay put. The next morning, 24 February, she went out of the house. On her return, she found that the house had been broken into. The telephone and the bookings book for the defender's chalets were missing. The defender had previously asked her to undertake responsibility for the bookings. She went to see the defender at Raigmore, and he would hardly speak to her. He said that he was sorry, but he had to dismiss her. On her return to the house she found that it had been broken into again and was lying open. The guns had been taken from the gun cabinet, antiques had been removed and the filing cabinets had been raided. The defender was responsible.
On 25 February she went to Aberdeen. When she returned to the house on 26 February she found that the locks had been changed. She last saw the deceased in the hospital on 27 February. Her impression of him around this time was that he was very emotional and confused. His speech was slow and slurred. Although she had no recollection of receiving it, she knew that at some point she had received a letter signed by the deceased, dated 25 February 1993, which was in the following terms:
"This letter is to confirm our meeting yesterday when I advised you that you had been dismissed from your post of housekeeper with immediate effect. I am prepared to pay you one month's salary to compensate you for any inconvenience which this dismissal may cause you. I am also prepared to pay your reasonable costs in having your personal belongings put into storage for two weeks whilst you find suitable alternative accommodation".
She was angry with the deceased when she was dismissed, although she blamed the defender. She was locked out of the farmhouse on 26 February, with her belongings still inside. She contacted her solicitor that day. She was however unable to arrange access to the house until 2 March, due to an intervening weekend and a public holiday. During this time she had no change of clothing. Her solicitor subsequently wrote to the deceased's solicitors seeking compensation. That had not been her wish.
The next time she was in contact with the deceased was on 18 May 1993. He had been discharged from hospital on 10 May and had returned home. On 18 May she received a telephone call from her daughter, Karen Pass, who said that the deceased had telephoned her and was desperate to contact the first pursuer. The first pursuer then telephoned the deceased. He was very emotional and was crying. His speech was slurred and very slow. He wanted to resume contact with her. She arranged to meet him the following day in a car park in Grantown-on-Spey. That location was chosen as being neutral ground for both of them. He told her that a new housekeeper had been appointed by the defender, and that she would drive him to the car park. The following day, 19 May, the first pursuer met the deceased as arranged. The new housekeeper, Morag McMillan, left them to talk together. The deceased broke down in her arms. He explained that he had had to sign the letter of dismissal because the defender was otherwise going to leave the farm. The deceased could not allow that to happen, having built the farm up over all the years. She met the deceased again on 20 May. He asked her to marry him. She did not give him an answer. That evening she telephoned the deceased and was told that there had been an incident. The defender had come into the house and had tried to assault a Mr Kelman, who was the deceased's best friend. The deceased had stood up and protected Mr Kelman, and the defender had then assaulted his father. That led to Morag McMillan being sacked by the defender. The first pursuer spoke to Morag McMillan the following day on the telephone, and Morag McMillan volunteered the information that she had been sacked.
At this time the first pursuer was unaware of the dispositions which had been executed in April. The deceased told her about the disposition of the farm, but he himself did not know of the disposition of the farmhouse. He knew that lawyers had come into the hospital, and he told her that documents were shoved under his nose and he signed them without reading them. His lawyers at that time were Sutherland & Co. The deceased told her that Janetta Mackenzie, an old friend of his who did household duties for him, had taken him from the hospital to Mains of Garten for the signing. Miss Mackenzie then visited the deceased and the matter was discussed. The first pursuer then took the deceased to see a new lawyer in Inverness, George McWilliam of MacArthur & Co, on 27 May. It was from Mr McWilliam that the deceased subsequently learned of the disposition of the farmhouse, probably in the autumn of 1993. He understood that the disposition reserved a liferent for himself and for assignees such as a housekeeper. On 30 May she told the deceased that she would marry him. They were married on 17 June, and the following day the first pursuer returned to the farmhouse for the first time since 2 March. The items which had been removed from the house on 24 February had been returned by then.
After the marriage, animosity developed between the deceased and the defender. The deceased became very unhappy. From what she saw of the deceased after the marriage the first pursuer formed the impression that he had signed the dispositions on 1 and 8 April 1993 under pressure from the defender. She never understood from the deceased that he had given instructions for those documents to be prepared. She was unaware of the reason why the deceased had executed the codicil dated 8 April 1993 (providing for the legacy to Alexander to be paid over five years). His resignation from the partnership was the result of his signing another document which was shoved under his nose. In relation to Morag McMillan's appointment, the first pursuer understood from the deceased that he had not made the arrangements for the engagement of a new housekeeper, nor had he selected Morag McMillan as the housekeeper. When Morag McMillan was dismissed, the dismissal was by the defender, not the deceased.
In cross-examination, the first pursuer stated that she had taken cheques into the hospital and had left them with the deceased. These were deposits for chalet bookings. She did not have the deceased's chequebook while he was in hospital, and did not ask him to sign cheques or other documents. With the deceased's permission, she paid cheques into his bank account. After the house was broken into on 24 February she took items belonging to the deceased from his drawer for safekeeping. These items included his chequebook and cheque card. Later that day the police called at the house, in response to a request from the defender, and she handed them the chequebook and cheque card. She had not taken them into the hospital. They had remained at all times in the house.
During her evidence, the first pursuer referred repeatedly to a diary and a notebook as aides-mémoires. In cross-examination she was taken through numerous entries, and the documents were lodged as productions. Several of the entries are eloquent of her feelings at the time, and some reveal an aspect of her personality which was not apparent from the controlled manner in which she gave her evidence. The diary entry for 16 February states:
"Decisions, decisions. Where do I go next? Can I take on nursing BG?"
She explained in cross-examination that there was a question in her mind whether she would be able to cope with looking after the deceased, depending on how severely he might be disabled. The diary entry for 24 February states:
"Early to see BG. He told me I had to get OUT. Manipulated by that EVIL BASTARD WILL".
The notebook entry for the same date states:
""Went to hospital to see Barclay. Told I had to get out - family wishes. Can't go against his family: why?"
The notebook entry for 26 February states, in relation to the defender's insistence that the first pursuer's access to the farmhouse to retrieve her belongings be arranged through Sutherland & Co:
"Will is deranged".
The entry for 27 February states:
"Went to Raigmore to plead with Barclay to give his signature to allow me in for change of clothes. He refused. I walked away (never want to see him again)".
A further entry for that date, concerning her having gone to the police and retrieved some of her belongings through their intervention, states:
"Told not to bother them again: me bother them (what a bloody cheek)".
The entry for the following day states:
"Have to get James on this 1st thing and plan attack. He can't get away with this!"
James Merson was her solicitor at the time. In cross-examination the first pursuer explained that "he" was the defender. The diary entry for 1 March also concerned the defender:
"He'll pay for this! His come-uppance will come".
The diary entry for 2 March also concerned the defender:
"Smart Alec. All smiles. Feel like giving him one ... MOVE OUT. THE BASTARD WITH WITNESS".
The notebook entry for the same date records:
"THAT BASTARD. I'LL GET HIM ONE DAY".
In subsequent entries the defender is referred to simply as "Bastard". The first pursuer also referred to a number of entries in the deceased's diary. The entry for 18 May 1993 states:
"William fell out with me for going to see Marilyn and for not signing chalets over to him".
The entry for 21 May 1993 states:
"Hit Will with stick. He was going to attack me".
The entry for 22 May 1993 states:
"William put Morag away".
I should say that I am not satisfied that the entries in the deceased's diary are contemporaneous. The entry for 13 February, for example ("Took stroke") must have been made at some later date. The entry for 18 May which I have just quoted has been written with three different pens ("William fell out with me for going to see Marilyn" is in grey biro; "and" is in blue biro; and the remainder is in black biro). It also appears that the entries in the first pursuer's diary and notebook are not all contemporaneous. For example, both documents contain entries for 23 February recording the fact that the deceased was visited in hospital that day by a solicitor, although the first pursuer stated in her evidence that she had first learned of that visit on 24 February.
In relation to the effect of the stroke upon the deceased, the first pursuer stated that he was physically affected on his left side. The main effect of the stroke was that he could not walk well. His left arm was also affected, and his speech was slow and slurred. He was otherwise much the same man, although slowed down considerably. After the wedding he became very difficult and very depressed, however, due to the defender's harassment. There was unhappiness in the marriage. The diary entry for 16 August 1993 states:
"BIGGEST ROW YET. I have never been so angry before. All because Maurice phoned. Have I to live with a zombie? I'll F off if nec."
On one occasion in November 1993 she noted that the deceased was outside with a shotgun under his chin. There was another occasion when she had to stop him from drowning himself. He became violent towards her, assaulting her for the first time on 16 August 1993 and on other occasions in late 1993 and early 1994. The first pursuer initially stated in evidence that there had been no subsequent assaults, and that there had never been any question of separation. When G.P. records were put to her, however, she accepted that separation had been discussed in April 1997, that she had been "beaten up" by the deceased in May 1997 and that she had complained to her doctor during 1997 about the deceased's temper, mood swings and physical violence towards her. These problems were all due to the defender's constant harassment. She herself was affected and would punch the wall through frustration. As an example of the problems caused by the defender she mentioned an incident in November 1996 when sheriff officers served a demand for payment within 14 days of £5,000 which the deceased owed the defender as the result of losing a civil action. There had been several actions between the deceased and the defender, as well as the arbitration. She had obtained an interim interdict against the defender after her water supply was repeatedly turned off.
Miss Morag McMillan gave evidence that she had become the deceased's housekeeper after responding to a newspaper advertisement. The defender came to her home in Nairn and explained to her that the deceased was in hospital. He took her to the Ian Charles Hospital, and she was interviewed there in the accused's presence. The deceased asked her if she had had a job before and if she was a good cook. He seemed happy about having her as a housekeeper. She felt that he was quite a normal person. She found the defender to be most kind towards his father. They were very friendly towards each other. After the interview the defender took her back to Nairn. Subsequently the defender telephoned her and said that the deceased had discussed it with him and she was being offered the job. She started work the day the deceased was discharged from hospital (10 May 1993). She gave notice about a fortnight later. The deceased and the defender did not see eye to eye with each other about the first pursuer. The defender did not want the deceased to have an association with the first pursuer or to have her back in the house. The matter came up after she drove the deceased to a meeting with the first pursuer in a lay-by outside Aviemore. The deceased told the defender the following day. The defender said that if his father was going to see the first pursuer, he would let him lead his own life: he was not going to interfere. She did not recollect the defender making any threat, nor had she seen any arguments. Until that occasion the atmosphere between the defender and the deceased had been very good. When asked about the entries in the deceased's diary quoted above, she said that she had not been aware of any dispute about chalets and she had no knowledge of any incident on 21 May. The entry for 22 May ("William put Morag away") was untrue. It was her decision to leave, and there had been no question of the defender sacking her. She left because she did not like the family dispute that was developing over the first pursuer.
Miss McMillan was a patently honest witness, and I have no hesitation in accepting her evidence. It follows that I reject the account of Miss McMillan's engagement and "dismissal" which was given by the first pursuer on the basis of what she had been told by the deceased. I also reject the first pursuer's own evidence of having been told by Miss McMillan that she had been sacked. I also regard the entry in the deceased's diary for 22 May 1993 as untrue, and I regard with suspicion the portion apparently added to the entry for 18 May ("and for not signing chalets over to him"). More generally, the discrepancy between Miss McMillan's evidence and the account given by the deceased (both to the first pursuer, and in his diary) leads me to regard with suspicion his account of the issues between himself and the defender. I also accept Miss McMillan's account of the deceased's apparent normality, and of the congenial relations between himself and the defender, during his convalescence in the Ian Charles Hospital. Even if I were to accept the first pursuer's evidence that the deceased was depressed, emotional and confused when in Raigmore around 23 to 27 February, I would not infer that he was in the same state when in the Ian Charles Hospital on 1 or 8 April. Nor does Miss McMillan's evidence support any suggestion that the deceased was likely to have been pressurised or intimidated by the defender around those dates, or that he was in a state of facility.
Barbara Wilson gave evidence that she had got to know the deceased in about 1990 after answering an advertisement for a housekeeper. She had not taken the post, but she remained in contact with the deceased and they became friends. They lost touch in about early 1992, and the next time she heard from him was when he telephoned her from the Ian Charles Hospital. He sounded fine. He was quite clear. His mind seemed to be working normally. He wanted her to go and look after him, but she was unable to do so. He told her that she would be able to have his home for her life after he died.
Miss Wilson appeared to me to be a reliable witness, and I accept her evidence. It supports Miss McMillan's account of the deceased's demeanour in the Ian Charles Hospital, and it is also indicated that he could take the initiative in organising his own affairs. It is also significant that he envisaged granting or assigning a liferent of the farmhouse, given that the disposition of 1 April 1993 reserved a liferent which could be assigned by him. That may be a pointer towards his involvement in the preparation of the disposition and his awareness of its terms.
Janetta Mackenzie (who witnessed the execution of the disposition of the farm, and the codicil, on 8 April 1993) gave evidence that she had acted as the deceased's housekeeper from about March 1992 for a number of weeks before she had to go home because of other commitments. The first pursuer was at that time living in one of the chalets. The defender treated the deceased with respect. He came to the farmhouse every morning and the deceased told him what was to be done. The deceased gave the orders. The got on very well. Miss Mackenzie returned when she heard that the deceased was in hospital. The defender did not try to restrict the deceased's visitors. She visited the deceased regularly in the Ian Charles Hospital. He told her then that the first pursuer was reluctant to look after him. The day the documents were signed she took the deceased out of the hospital for the day. She had been visiting him about twice per week before that date, since about the third week he was in hospital. He was very adamant to sign the documents. He was anxious to sign things over to his son. His solicitor urged him to read the documents very carefully, and the deceased did so. At this point in Miss Mackenzie's evidence, Mr Haddow (whose witness she was) put to her an attendance note made by Mr McWilliam (the solicitor whom the first pursuer took the deceased to see on 27 May 1993) dated 27 May 1993. The note is in the following terms:
"Attendance on telephone with Janetta Anne Mackenzie of 11 Cradmore Drive, Culloden. Miss Mackenzie advised that she was the witness to the signature by Mr Grant of the documents in favour of his son. Noting that it was her understanding that Mr Grant and his son fell out over Marlene MacDonald who was, allegedly, messing around with Mr Grant's cheque book.
There was another housekeeper there recently, but she had left because she could not stand the atmosphere, particularly when William came in. She had been employed by William. Mr Grant is now effectively a prisoner in his own house.
Noting that Miss Mackenzie was the one who took him out of hospital in Grantown and took him to the house where the papers were put under his nose. It was not fair. Mr Grant was confused. Mr Innes told him to take his time and read it, but Mr Grant didn't. The son wanted to grab everything and William was there at the time.
Barclay Grant asked that if his son died that everything would go back to his father. William agreed that he would have a will drawn up in those terms.
William has previously said to me that Mr Grant no longer has any say who he takes into the house.
There was apparently a fight between Mr Grant and his son and this was seen by Mr Kelman".
Miss Mackenzie had no recollection of speaking to Mr McWilliam. As far as she was concerned, the deceased had done his will, perfect in his own mind and nothing wrong with him. She took him out in the morning. He knew he was going out to sign documents. He said he was coming out to draw his will up. He asked her to come and take him out. He was in a fit state of mind. He was with her most of the day. He was told by the solicitor to go over the papers carefully, which he did. He took quite a long time going over everything. He kept the chalets and that was it. She had not told a solicitor what was said in the attendance note about the signing of the papers. The deceased had not been at all confused. He willed his house and the farm to his son, and he was to have the use of the house as long as he lived. He was not told by the defender to sign. Later he no doubt had his arm twisted round his back by his lady friend to change his will. The marriage was hastened upon him. He was a bull taken by the horns. In three weeks someone else tramped in very quickly and married him. Those were the three weeks when Morag McMillan was there. She (Miss Mackenzie) had been taking telephone calls from this Marilyn, and the deceased told her to say that he was not in. But in the three weeks they got round Morag and got her to take the deceased to a lay-by to meet Marilyn. She (Miss Mackenzie) never saw the deceased again after he got married. He was pushed into marriage, and the fighting came afterwards, with the lady he married. The eruptions started when his lady friend found out that the will was already signed. He was treated by her like a child. She (Miss Mackenzie) had not said what was recorded in the last two paragraphs of the attendance note. Nor had she remarked to the pursuer's solicitor (Mr Douglas Miller) outside the courtroom, the day before giving evidence, when he told her that the first pursuer was still giving evidence, "She's still telling her lies."
During her examination-in-chief Miss Mackenzie was quite emotional and agitated and she displayed very clearly her animosity towards the first pursuer. In cross-examination the following day she was somewhat calmer. When she visited him in hospital, the deceased had not expressed to her any concern about having a second stroke, but he talked to her about his intentions regarding the defender and the farm. He wanted the defender to have the family home. He had a plot of ground on which he wanted to build a bungalow. He was going to have the bungalow built, move into it, and have the defender live in the farmhouse. He told her that Alexander had more than enough, and that the defender had been with him since he left school. The day she took the deceased out of hospital to sign the documents, he seemed fine, apart from weakness on his left side. She thought he could have been discharged, if he had had a housekeeper to help him. She understood that he had to stay in the hospital until a housekeeper was available. At the farmhouse, everyone had a cup of tea. The deceased seemed quite happy. He was wanting to keep the chalets for himself. Nothing was taken out of his hands without his consent. It took most of the afternoon. There was no rush. She saw quite a few other visitors at the hospital, who were friends of the deceased's from Grantown-on-Spey. The marriage was a very hasty decision and came as a shock to her. She spoke to the deceased on the telephone after the marriage. He told her that he was a very unhappy man, and that he and his wife had separate rooms. His last few years were hectic. He was trailed around solicitors when he was not fit. The ammunition was made by the first pursuer and he was firing it. He had to fire it; he had nowhere else to turn. A few weeks before he died he seemed to be a totally different man. He told her that the will was going to be contested, but that was not his wish. His sons were not told of his death. It was a week before they found out, and by then he had been cremated in Aberdeen.
I have narrated some of Miss Mackenzie's evidence almost verbatim, so as to convey the flavour of it. As I have mentioned, Miss Mackenzie was an emotional witness. She was not unique in that respect, but she displayed her emotions more plainly than, for example, the first pursuer. For reasons which I explain later, I am satisfied that the attendance note accurately records what Miss Mackenzie said to Mr McWilliam on 27 May 1993. That account is dramatically different from her evidence about the events of 8 April 1993. I am also satisfied (on the basis of Mr Millar's evidence) that Miss Mackenzie made the remark to Mr Millar which she denied having made, although I should say that that denial was at a stage in her evidence when she was particularly agitated. It follows that I do not regard her as a reliable witness. I would be reluctant to conclude that she was deliberately dishonest in her evidence, but I consider that she is a person whose account of events, and possibly her recollection of those events, is liable to be profoundly coloured by her emotions. In particular, her evidence was in my view coloured by her hostility towards the first pursuer and her fierce loyalty to the deceased's memory. At the same time, I do not discount her evidence in its entirety. In particular, I am inclined to accept the account which she gave of the deceased's stated intentions regarding his sons, the bungalow and the farmhouse. I am also inclined to accept her account of the deceased's anxiety to retain the chalets. I doubt whether circumstantial details of this kind originated in Miss Mackenzie's imagination. In the light of the whole of the evidence, I have also concluded that her evidence as to events on 8 April 1993 is likely to be true, and that it is the version which she gave to Mr McWilliam which is likely to have been false. I have however reached that conclusion on the basis of other evidence which I accept, from witnesses whom I consider to be clearly reliable, and not on the basis of Miss Mackenzie's own evidence, which I would in general regard with considerable suspicion if it stood alone.
Gavin Cullen was at all material times the manager of the Bank of Scotland's branch in Grantown-on-Spey, where the partnership account of W. B. Grant & Son was held, and also the deceased's chalet account. He dealt frequently with the deceased and the defender from 1988 onwards. They almost always attended meetings with him together. They had obviously discussed matters a great deal, and adopted a united position. The deceased was vocal in discussions. From 1990 until 1993 there was a series of discussions about how to deal with the partnership's lack of income and its mounting overdraft. One step which was taken in 1991 was the sale and leaseback of a caravan park. That raised about £50,000. Another way in which the overdraft was to be reduced was through the sale of development sites for houses. This involved de-crofting the land in question and obtaining planning permission. One site was sold in 1992 and raised about £22,000. There was another site which was owned by the deceased, beside the farmhouse. The deceased wanted to build a house there for letting out. Another matter under discussion was inheritance tax planning. The deceased and the defender wanted to keep everything in the family and were concerned that there might be an inheritance tax liability on the deceased's death. Mr Cullen advised them to speak to Peter Munro, the partnership's accountant, about that matter. Mr Cullen recollected inheritance tax being discussed with him around 1992, and also when the cattle were being sold in 1993. That was to be done as if the deceased was retiring, so as to obtain retirement relief. Mr Cullen also dealt with Iain Innes, who was the partnership's solicitor. In October 1992 Mr Innes obtained a valuation of four properties at Mains of Garten: the existing farmhouse (£75,000); the proposed new house for which plans and a specification had been prepared (£80,000); four holiday chalets (£80,000); and three development sites, each of which had outline planning permission for one house (£66,000). That valuation was obtained with a view to obtaining a 25 per cent grant under the Rural Enterprise Scheme. The upshot of the discussions was that it was understood that the farm and the farmhouse were to be transferred to the defender, so as to avoid inheritance tax, while the deceased was to retain a house site and the chalets. That was discussed in 1992, long before the deceased went into hospital.
On 10 February 1993 Mr Innes wrote, on behalf of the deceased, to Mr Cullen in relation to the site next to the farmhouse, proposing that once the site had been de-crofted a deed of restriction should be granted by the bank. That was necessary because the bank held a standard security which included the site. Mr Innes's letter proposed that the deceased would then take out a business loan on the site, from a different lender, and apply the loan proceeds to reducing the partnership overdraft. A decision was also taken in 1993 to sell the cattle. That was a painful decision for a farmer, and Mr Cullen recollected the deceased being opposed to it when the matter was discussed at the farmhouse. In March 1993 Mr Cullen wrote to the partnership saying that the cattle would have to be sold. They decided to sell, and the cattle were sold for £26,000 in June 1993. The sale of the house sites was important as well. He was visited by the deceased and the defender about that. Two sites had not been sold, because the deceased refused to sign the necessary deeds. The bank had to call up its security and take control of the sites. Mr Cullen had visited the deceased once in hospital, and the relationship between the deceased and the defender was all right at that time. He learned from the defender that arrangements had been made for the transfer of the farm and farmhouse after the deceased suffered his stroke. He first learned of the deceased's relationship with the first pursuer on 19 May 1993, when the defender and Alexander came to see him because of their concern about the relationship and its implications.
Mr Cullen's evidence indicates that the conveyances which took place in April 1993 had been under consideration for some time and did not come out of the blue. On the other hand, he had not been aware from his own knowledge of any point at which the deceased had reached a fixed or concluded intention. Mr Cullen's evidence also provides an explanation, at least in part, for the deceased's retirement at that time, namely to obtain tax relief on the proceeds of the cattle sale. It is also another piece of evidence indicating that the deceased and the defender had a good relationship while the deceased was in hospital.
Peter Munro's recollection of matters was clearer than Mr Cullen's. He acted as the partnership's accountant from 1983 until its dissolution in 1993. He had a number of meetings with the partners during 1992. The first, in April, was to discuss the 1991 accounts. The results were very poor. He told them that the farm was no longer viable, and that serious measures were required to prop it up. The sale of the caravan park (which belonged to the deceased) had not been sufficient. The subject of inheritance tax was also raised briefly. The last meeting, in November, was to discuss inheritance tax and the transfer of assets. Tax law had changed during the year, so as to take agricultural land outwith the scope of inheritance tax. There was therefore no longer any problem as regards inheritance tax, except in relation to the chalets (which took the deceased's estate above the inheritance tax threshold). At the meeting they looked at the whole picture over the longer term. Referring to his file, Mr Munro stated that his note of the meeting read:
"Phone Gavin Cullen and Iain Innes re transfer of farm/farmhouse to William with liferent to WBG.
Looking for £30,000+ balance of house in loan".
The last sentence, as I understood Mr Munro's evidence, referred to the funding of the construction of the house to be built on the site behind the farmhouse: at least £30,000 was expected to be available as the deceased's share of two further sites which were ready to be sold for about £22,000 each, (the deceased having a two-thirds share in the partnership), while the balance would come from a personal loan taken out by the deceased. Mr Munro was cautious in interpreting his own file note. He thought that the house was intended for the deceased to live in, but he was not sure. The transfer of the farm and farmhouse to the defender, with a liferent to the deceased, had been discussed at the November meeting, but he could not say if they had been agreed. The deceased and the defender were considering the matter, while he had himself contacted Mr Cullen and Mr Innes for them to give their opinion. The liferent was probably his own suggestion, to secure the deceased's rights for his lifetime. He would not have had inheritance tax in mind in making that suggestion. He thought that Mr Innes had had a meeting with the deceased and the defender subsequent to his own final meeting with them in November 1992.
In cross-examination, Mr Munro said that the intention was that the farm would remain in the family. The deceased wanted to continue to live on the farm, and so Mr Munro had suggested a liferent to protect his interests. They also discussed the option of building a house on the land for the deceased to move into. It was always understood that the deceased would remain on the farm until his death. The defender was already doing most of the farming, while the deceased dealt with his own chalet business. In re-examination, Mr Munro said that he had obtained Mr Innes's opinion in a telephone call on 15 December 1992. His file note read:
"After meeting yesterday, it was proposed that two of Barclay's four chalets be transferred to William to avoid inheritance tax. I said this could be O.K., but agreement must state Barclay enjoys income from all four chalets until death. Term insurance policy being effected by William for seven years to cover inheritance tax implications".
Mr Munro was a good witness. From his evidence it is clear that the idea of transferring the farm and farmhouse to the defender, and retaining a liferent of the farmhouse, a house site and the chalets, was in the deceased's mind in late 1992. This tends to support Miss Mackenzie's evidence as to the deceased's intentions, as expressed to her after he became ill.
Dr Finlay Kerr was the consultant physician at Raigmore Hospital who was responsible for the deceased's care from 13 February 1993 until his transfer to the Ian Charles Hospital on 17 March 1993. He was referred to a letter which he had written to MacArthur & Co on 30 November 1993 in response to their enquiry as to whether the deceased had been in a fit state to understand legal documents at the beginning of April. In the letter Mr Kerr wrote:
"So far as I can see, he should have been fit to understand these documents and therefore to sign them appropriately. You mentioned that he was put under some pressure by his family and others to sign the documents and you ask whether he would have been capable of resisting this.
There is no doubt that following what was quite a disabling stroke, Mr Grant would have felt very vulnerable and I think may well have condescended rather more readily than he would have done when perfectly well.
I have to say that these comments are somewhat speculative since we did not keep note on the state of his mind with regard to undertaking tasks such as you mention".
In his evidence, Dr Kerr explained that what he said in the letter was not a medical judgement: people who had recently suffered a stroke were likely to be feeling vulnerable and might therefore be less able to withstand pressure. Dr Kerr's only relevant note from the period of the deceased's treatment at Raigmore was of a discussion with the defender on 16 March 1993. The defender had been considering employing a housekeeper, which Dr Kerr thought was premature. Dr Kerr had explained to the defender that the deceased's un-coordination was such that he could not yet be independent at home. The defender wondered whether his father might be moved to the Ian Charles Hospital. This was a local community hospital run by G.P.s. The deceased required physiotherapy, which could take place there. Dr Kerr recorded that he would contact that hospital, and the deceased was transferred the following day. Dr Kerr was asked about emotional lability, which he described as a state in which patients have a lower threshold to crying or laughing under emotional stimulus. He did not remember the deceased having emotional lability while in Raigmore. When he saw the deceased, he thought that the deceased was capable of making his own clear and rational decisions. Dr Kerr was referred to a letter dated 2 September 1993 apparently sent by a locum G.P., Dr Boyd Peters, to MacArthur & Co, in which Dr Peters wrote, in relation to the deceased:
"As far as I can ascertain he is capable of making his own clear and rational decision providing as always that the effect of any documents are properly and appropriately explained to him at the time of signing".
That assessment coincided with how Dr Kerr had found the deceased. In cross-examination, Dr Kerr stated that when he had written that the deceased "should have been fit to understand these documents and therefore to sign then appropriately", that was based on his recollection and a review of the clinical records. The deceased retained his mental faculties. If something was explained clearly, he should have been able to understand that. If on the other hand pressure was brought to bear, which caused him to become emotionally disturbed, then that might affect his reasoning: anyone could make an inappropriate decision as a result of being upset. Dr Kerr was also referred to a letter which he had written to Dr Peters dated 17 February 1994, in which he described the deceased as having "really made a very good recovery from his stroke" and said that he "would not have had any real doubts about his intellectual capacity". That was consistent with Dr Kerr's recollection of Mr Grant in March 1993.
I accept Dr Kerr's evidence that the deceased was able to understood legal documents and was capable of making his own clear and rational decisions during the period when he was in Raigmore. I infer that the deceased is likely to have been in a similar condition (if not better) while in the Ian Charles Hospital. I also accept Dr Kerr's evidence that, in general, a person who has recently suffered a stroke may be less able to withstand pressure, if pressure is applied.
Dr Stephen Mathers was the deceased's G.P. He spoke to a letter dated 8 June 1993 which he had written to MacArthur & Co, in response to an inquiry from them regarding the deceased's state of mind. In the letter he wrote:
"I am unable to give any advice regarding his state of mind between the periods of 13.2.93 and 17.3.93 but following his admission to the Ian Charles Hospital his main problems were that of mobility and emotional lability. Because of this emotional problem he was apt to react rather more excessively than previously to problems. I am of the opinion however that he was not confused and was perfectly capable of understanding any documents he may have signed providing that the effect of such documents were properly and appropriately explained to him at the time of signing".
The problem of mobility was the result of a left-sided weakness. By "emotional lability", Dr Mathers meant that a problem which might make someone else anxious or upset would make the deceased more anxious or upset. In the deceased's case, emotional lability became chronic and persisted for years after his stroke. His visual acuity was virtually normal. The proviso in the last sentence of the letter ("providing that the effect ...") was one which Dr Mathers would make in relation to anyone. He himself might not understand legal terms. Dr Mathers was asked to comment on the third paragraph quoted above from Dr Kerr's letter of 30 November 1993 ("There is no doubt ..."). He was unwilling to commit himself to a definite view. He would need to know what the pressure was. He could not say what the effect on the deceased would have been of a suggestion that if he married then the defender would leave the farm, or that the defender would leave the farm unless he signed documents. He thought that it was possible that it might affect the deceased's decision, depending on the degree of pressure. That was not however a medical opinion.
Dr Mathers had been responsible for the deceased's care while in the Ian Charles Hospital. He was aware that the deceased went out of the hospital from time to time, and he thought it likely that he had been consulted beforehand, as the nurses would have asked him. He saw the deceased regularly in the hospital. He had no reason to suspect that the deceased's relationship with the defender at that time was anything other than cordial. There was no real doubt about the deceased's intellectual capacity.
Dr Kerr and Dr Mathers were both good witnesses. I was particularly impressed by the evidence of Dr Mathers, who knew the deceased much better than Dr Kerr. On the basis of their evidence I have no doubt that the stroke had no effect on the deceased's intellectual capacities on 1 or 8 April 1993. I accept, particularly having regard to Dr Mather's evidence, that there is no more than a possibility that the deceased might have been vulnerable to pressure. Dr Mathers appeared to me to be sceptical of that suggestion, and the other evidence which I heard about the deceased's strength of character, as well as his actual behaviour (e.g. in marrying the first pursuer in the face of his sons' disapproval) strongly supports such scepticism.
Iain Innes, as I have mentioned already, had been during 1992 and 1993 a partner in the firm of Sutherland & Co, who acted at that time as solicitors for the partnership of W. B. Grant & Son and also for the deceased as an individual. They also acted for the defender as an individual for a time after May 1993. There had been numerous other firms of solicitors involved subsequently on behalf of the deceased and the defender, and Mr Innes himself had changed firms. It was not clear that all the files at one time in existence had been recovered.
Mr Innes confirmed that he had witnessed the execution of the deceased's will in 1991 and codicil on 8 April 1993. He had drafted the codicil. It had been executed in the farmhouse. He had also witnessed the execution of the disposition of the farmhouse on 1 April 1993. He had not drafted the disposition. It had been executed in the farmhouse. He had also witnessed the execution of the disposition of the farm. His firm had drafted the disposition. They acted for both the disponer (i.e. the partnership) and the disponee (the defender).
Mr Innes was asked about the circumstances leading up to the dismissal of the first pursuer as the deceased's housekeeper. He had seen the defender and Alexander, along with his partner Craig Wood, on 23 February 1993. They had initially come to see Mr Innes, and he took them through to Mr Wood's room because employment law was not a subject Mr Innes dealt with. He had not been present when Mr Wood visited the deceased at Raigmore later that day, nor had he been involved when Mr Wood discussed matters on the telephone with the defender that evening. He had not drafted the letter of dismissal. He had not been present when it was signed, or at least he could not recollect being present. The fee note had been sent out on 17 March 1993. It was addressed to the defender, although the deceased was the client, since the deceased was still in hospital at the time.
Mr Innes was next asked about the deceased's resignation from the partnership of W. B. Grant & Son. Mr Innes had drafted the letter of resignation, which was dated 25 April 1993. It was signed in the farmhouse in the presence of himself and Janetta Mackenzie. Mr Innes could not recollect whether that had been on 1 or 8 April 1993, but Miss Mackenzie's presence indicates that it was probably on 8 April 1993. The defender had been present on one or both occasions on 1 and 8 April, but not at the beginning of the meeting. He had not been in the farmhouse when Mr Innes arrived, but had made his way there from where he had been working on the farm. Lyn Grant had been present on at least one of the occasions. No other solicitor had been present.
Mr Innes stated that his instructions came from the deceased. He recollected inheritance tax planning being discussed, and he was referred to a note he had made of a meeting with the deceased on 7 October 1992 at which it had been noted that the deceased was asset heavy and at which Mr Innes had suggested various solutions. Another problem discussed was the overdraft, which was at a level the bank would not sustain. It was necessary to know what the deceased was worth, and whether assets could be realised to reduce the overdraft. The deceased also wished to avoid the possibility of the local authority's requiring the house to be sold to pay for nursing care (if he required at some point to go into a nursing home). There was discussion of building a new house on a plot on the farm. An agricultural loan was available for that purpose, but someone younger than the deceased would have to apply for it. On 16 October 1992 Mr Innes instructed the valuation mentioned during Mr Cullen's evidence. A copy was sent to the deceased in November 1992, as was the fee note. Mr Innes had a further meeting with the deceased on 5 November 1992, when there was a discussion of using insurance to cover the risk of inheritance tax being assessed in respect of potentially exempt transfers (i.e. if the deceased were to die within seven years of transferring assets). In the event it transpired that insurance could not be obtained, due to the deceased's poor health. Mr Innes recollected being advised by Peter Munro that inheritance tax was not an issue as far as the farm was concerned, but there remained the problem with the overdraft. On 27 November 1992 Mr Innes wrote to the deceased advising that the simplest way of raising money would be to take out a domestic mortgage over the farmhouse, with any additional finance required possibly being borrowed on the security of the chalets. They had discussed that it would be easier to raise money if the farmhouse were the defender's property, since the defender could more easily obtain a mortgage over it. These matters had been under discussion since October 1992, and the execution of the various deeds in April 1993 was the culmination of these discussions. He referred to a copy letter in his file dated 22 December 1992, addressed to the deceased. The letter confirmed having discussed with Peter Munro (the accountant) the possibility of transferring two chalets into the defender's name. This is consistent with Peter Munro's file note of 15 December 1992 which I have quoted above. More significantly, the copy letter bears a number of notes in Mr Innes's handwriting. The words "2 chalets to be transferred" have been noted, then scored out. The other notes include:
"Liferent of house.
Mortgage of £60,000 to pay off bank.
House site in process of decrofting.
(1) Deed of restriction.
(2) Disposition by WBG in favour of WG with liferent reserved for WBG.
Deed of restriction
Bank's permission to indicate mortgage to be used to reduce overdraft".
There is then what Mr Innes described as an aide-mémoire of the deeds which had to be drafted. It reads:
"Disposition ad rem.
Discharge.
Standard Security.
Fresh disposition.
Deed of restriction.
Disposition by WBG in favour of WG with liferent."
These notes tie in with Mr Innes's letter to Mr Cullen (the bank manager) dated 10 February 1993, which I have summarised above. Mr Innes's copy of that letter is the next item in his file after those notes. Mr Innes could not recollect when the deceased had confirmed his instructions, but was adamant that the deceased must have done so: in particular, he was in no doubt that he had been instructed by the deceased to proceed with the dispositions. He had initially received instructions to draft the disposition of the farmhouse (reserving a liferent) from the deceased; and it was on 1 April 1993, when he saw the deceased in connection with the execution of that disposition, that he received instructions from the deceased to prepare the other documents (i.e. the disposition of the farmhouse, the letter of resignation and the codicil). The initial instructions had been given in a telephone call which he received from the deceased within the week prior to 1 April. He had no note of that call on file, but it was apparent that his file was not a comprehensive record (there was, for example, no record in the file of his attendance at the farmhouse on 1 and 8 April, although there is no doubt that he was there on those dates). He was certain that he had received such a call. On 1 April 1993, the deceased recognised Mr Innes, welcomed him into the house and asked the housekeeper to make tea. They made general conversation, and everything appeared to be as it should be. On each occasion, Mr Innes gave the deceased the documents which were to be executed and asked him to read them over. He had a clear recollection of the deceased reading the documents. That had happened on both 1 April and 8 April.
The purpose of the codicil (providing for stage payments of Alexander's legacy) was to ensure that the legacy did not place the farm under financial pressure.
Asked whether it was possible that the defender had cajoled and pressurised his father, Mr Innes responded that from what he had seen the opposite was the case. The father was intent on passing the property to his son. Asked whether the deceased had felt unable to say no to the suggestion that he sign the documents, Mr Innes responded that entirely the opposite was the case: the deceased had been keen to sign them. Asked specifically about the disposition of the farmhouse, Mr Innes stated that he was quite sure that there had been no pressure placed on the deceased to sign it. It had been discussed for many months, and had been instructed by the deceased during the week before its execution. The deceased had read it over while Mr Innes was drinking tea. His recollection was that the defender had not even been in the house at that stage.
Mr Innes explained that the deceased had initially been Craig Wood's client, and he had become a client of Sutherland & Co. when Mr Wood joined that firm. Mr Innes described the deceased as a very shrewd farmer, for whom he and Mr Wood had great respect. He said that it was very much the deceased who asked the questions, made the decisions and called the shots. The deceased had an excellent relationship with the defender prior to the marriage, but it was a father and son relationship. He understood the disposition to be the father's way of providing for his son, enabling the overdraft to be reduced and avoiding the possible sale of the house to pay for nursing care.
Mr Innes's evidence is plainly of the greatest importance in this case. His evidence was criticised by counsel for the pursuers as being wishful reconstruction, inconsistent with the evidence he had given previously during the arbitration proceedings (to which other witnesses spoke) and lacking in the precision and clarity one would expect from a solicitor. On the latter point, it seems to me to be important to remember that, for whatever reason, the records available to Mr Innes were less complete than one would normally have expected. In these circumstances, I do not find it surprising that Mr Innes's evidence on many issues was rather vague, and on some issues probably unreliable. He was by no means the only solicitor whose evidence in this case demonstrates that memory is an imperfect servant. In the absence of records or a clear recollection, there is of course a danger of what was called wishful reconstruction: in other words, assuming that one must have done what one would regard as the proper thing to have done in the circumstances. I shall come in a moment to the evidence given by other witnesses as to what Mr Innes had said in evidence at the arbitration. One of those witnesses, Colin Watson, could not recollect the details of Mr Innes's evidence, and in particular could not recollect whether Mr Innes had been asked when he received instructions in relation to the dispositions. The second witness, Ian Fraser, was prepared to accept that Mr Innes had probably said that he received instructions on 1 April to draft the disposition which was executed on 8 April, but had been unable to say who had given him instructions. Iain Donaldson, whom I considered to be generally the most reliable of these three witnesses, said that Mr Innes had been vague about when and how instructions were given, but had maintained that he must have been given instructions. I also regard as important the evidence of George McWilliam, which I will come to later, that he had been told by the deceased that he had given instructions to Mr Innes (admittedly, under pressure from the defender, according to the deceased). I also bear in mind other evidence directly relevant to what took place at the farmhouse on 1 and 8 April (notably that of the defender), and other evidence as to the deceased's mental capacities, personality and involvement in business affairs while convalescing in hospital. I also of course have regard to the impression I formed of Mr Innes during the fairly lengthy period he gave evidence. He appeared to me to be an honest witness, who was bemused that the voluntariness of the deceased's conduct was being questioned. I accept his evidence as truthful. I also accept his evidence as reliable on the critical issues, while acknowledging that he was vague on many matters of detail and probably unreliable on some matters of that kind (e.g. whether he was present at Raigmore when the letter of dismissal was signed). It follows that I reject the deceased's account, as related in evidence by several witnesses, that he had signed the dispositions without reading them and without knowing what they were. I also reject Miss Mackenzie's account, as given to Mr McWilliam and noted in the file note quoted earlier, that the deceased had been confused, had had the papers put under his nose and had signed them without reading them. I accept the first pursuer's evidence that Miss Mackenzie had discussed this matter with the deceased shortly before Mr McWilliam was instructed, and I consider it likely that she gave a distorted account to Mr McWilliam, possibly as a result of her loyalty to the deceased and her tendency to let her emotions colour her depiction of events.
The next witness was Colin Watson, who had acted as clerk to the arbiter appointed to deal with the issues arising from the dissolution of the partnership. He stated that evidence had been heard in November 1995 and April 1996. Mr Innes had given evidence. Mr Watson could not recollect the detail of that evidence. Mr Innes had been unable to recall details of meetings, or who he had spoken to or who had given him instructions. Mr Watson could not recollect whether Mr Innes had been asked when he had received instructions in relation to the dispositions. The deceased had also given evidence. His evidence was that he had not instructed the dispositions. He had signed documents but had not been clear what they were. He wanted the defender to have the farmhouse on his death, and was prepared to accept the position in relation to the farmhouse as it stood at the date of the arbitration. Mr Watson was certain that that was the deceased's position. He had noted:
"Mr Grant Senior was content to leave the matter as regards the farmhouse as it stood".
The defender had also given evidence. His evidence was that there had been an oral agreement reached between himself and his father in relation to a number of matters, and his father had instructed Mr Innes to draft the dispositions in order to carry the agreement into effect. He had not been able to specify the date when the agreement was reached. The nearest estimate given was some time in December 1992. The arbitration proceeded on the basis that the deceased had resigned from the partnership on 5 April 1993. The scheme of division took into account confirmation from both parties that the challenge to the disposition of the farm had been withdrawn.
The next witness was Ian Fraser, who had acted as the arbiter. He stated that Mr Innes's evidence in the arbitration had been couched in extremely vague terms. He had probably said that he was told on 1 April to prepare the disposition executed on 8 April, but he could not say who had given him the instructions. The deceased's position was that he had not known what he was signing. He was content that the farm should remain with the defender, but he was not asked such a question about the farmhouse. As Mr Fraser summarised the deceased's evidence in his decision:
"He declared he wanted the respondent to have the farm on his death but was prepared to accept the position on the property as it now stood".
The defender's position was that there had been an agreement reached over a period of time as to the split up of the assets. Mr Fraser could not recollect the deceased giving evidence as noted by Mr Watson and quoted above, but would defer to Mr Watson's notes. Notwithstanding Mr Fraser's deference to Mr Watson's note, I consider it likely that Mr Watson's note is erroneous in referring to the farmhouse rather than the farm. There was no reason for the deceased to give evidence about the farmhouse at all (since it was not a partnership asset), and it is unlikely that he would have been willing at that time to accept the defender's entitlement to it, given the position he had taken up in the present proceedings.
Iain Donaldson was a partner in MacArthur & Co, the solicitors acting for the deceased in the arbitration. He had attended the hearing on the day when the deceased and Mr Innes gave evidence. He attended that day because Mr McWilliam was unavailable: he had had no previous involvement in the case. According to his recollection (refreshed by consulting his notes), the deceased stated, in relation to the disposition of the farmhouse, that he knew what he was signing, but had effectively been persuaded to sign it. In relation to the disposition of the farm, on the other hand, the deceased stated that he had not known at the time what he was signing. He said that he had not given any instructions for the preparation of any documents: he might have discussed them with Mr Innes, but he gave no instructions to go ahead with them. Asked why the house had been transferred subject to a liferent, he said that that was for tax purposes. He said he had been advised that if the house was signed over, it would have benefits from a tax point of view and it would avoid the risk of the house being sold to meet nursing home fees. He understood that he was signing a disposition of the farmhouse to himself in liferent and to his son in fee. He said that he had seen Mr Innes in hospital and Mr Innes had read over a document to him regarding putting the first pursuer out of the house. There was a threat that if he did not sign, the defender would leave him to look after the farm and the animals. Mr Donaldson said that Mr Innes's evidence had been vague as to when and how instructions were given. Mr Innes had said that he must have been given instructions. He indicated that if he put a document in front of somebody and asked them to sign it and they did so, then he took it that the document was in accordance with their instructions. On checking his notes, Mr Donaldson said that he had noted Mr Innes as saying:
"Put the deeds in front of Mr G, allowed him to read them over, asked him if he had any questions, asked him to sign".
That was the context in which Mr Innes made the comment about taking it that the document was in accordance with the person's instructions.
Mr Watson, Mr Fraser and Mr Donaldson were all credible witnesses, but insofar as there were conflicts or differences of emphasis between them I prefer the evidence of Mr Donaldson. Mr Donaldson appeared to me to be a particularly careful witness. I accept, from his evidence, that the deceased's position at the arbitration was that he had understood the nature and effect of the disposition of the farmhouse, but had not instructed its preparation and had "effectively" been persuaded to sign it.
The final witness led on behalf of the pursuers was George McWilliam, a partner in MacArthur & Co. The deceased had been his client between May 1993 and 1997. He was the author of the attendance note dated 27 May 1993 quoted earlier in the context of Janetta Mackenzie's evidence. He had spoken to the deceased earlier that day on the telephone and had arranged to see him, and the deceased had given him Miss Mackenzie's telephone number. The attendance note was an accurate record, as far as possible verbatim, of what Miss Mackenzie had said to him, based on hand-written jottings made during the call.
Later that day he met the deceased for the first time. His attendance note recorded inter alia the following:
"There had been a threat that William would leave if Marilyn didn't leave. Sutherland & Co produced a letter of dismissal of Marilyn and Craig Wood came to see Mr Grant in hospital. William had apparently been in touch with them to get them to prepare a document for Mr Grant to sign. Mr Grant told Craig Wood that he was unwilling to sign and Craig advised that, if he didn't sign, William would be gone.
After it all happened, Mr Grant wanted to make his peace with Marilyn, but he was told by William that he could not go to see her and William threatened to leave".
I note that that is different from Morag McMillan's evidence (which I accept) that the deceased saw the first pursuer without the defender's knowledge; there having been a very good atmosphere between them prior to then; and that the defender's response, on learning of his father's contact with the first pursuer, was to say that he would let him lead his own life and would not interfere. Mr McWilliam's evidence on this matter strengthens my view that the deceased's accounts of events are unreliable. The attendance note continues:
"When Mr Grant was transferred to Grantown Hospital his son came in to see him. He always complained that it was a nuisance coming in. He got him to sign over the house and chalets because the Government would take it all to help payment of the fees for Mr Grant being in hospital. Noting that Mr Grant had spoken to Ian Innes about signing over the house at an earlier date - perhaps in January or February of this year ...
William had told him that he must do it. That is what the solicitor said. Ian Innes was taken up to see him on one Thursday and he gave instructions to Ian, as told by William. William was with him at the time and there was no suggestion that William left. Mr Grant accepted that, even if William had left, it would probably have made no difference to what he had told Mr Innes".
This passage is notable in recording the deceased's acceptance that he had given instructions to Mr Innes in relation to the disposition of the house albeit (according to the deceased) as the result of the defender's telling him that the legal advice was that he must follow that course of action. It contrasts with the evidence given by the deceased at the subsequent arbitration. The note continues:
"He was told that if he lived for 7 years after signing over the house there would be no duty. The only way in which he would sign over is to keep the liferent and the liferent (sic) for the housekeeper or companion. This is the only way to give someone like that security. William said that he would see to it that he made a will in favour of Mr Grant regarding the house in case William died. Mr Grant was of the view that William had pressurised him, but he had never spoken to anyone else about it as it was a family matter.
When the documents were placed in front of him he never read them. He can't remember if he was told to read it. There is a question of whether he was fit to read it".
In cross-examination (foreshadowing a subsequent submission as to the admissibility of the evidence based on the note of Mr McWilliam's conversation with Miss Mackenzie), Mr McWilliam said that he had subsequently prepared a precognition of Miss Mackenzie in the same terms as the attendance note of his conversation with her, which he put into a different format. He did that at a later stage, when there was a likelihood of court proceedings. At the time of the telephone conversation he had been told that the deceased required advice about a difficulty relating to his partnership with his son. He had only limited information. He knew that deeds had been signed, and that Miss Mackenzie had been a witness to the deed. Court proceedings were not the first thing in his head. Mr McWilliam impressed me as an honest and careful witness, and I accept his evidence. I also accept that his notes are a reasonably accurate record of what was said to him.
A report was lodged of a commission to take the evidence of Karen Pass, the daughter of the first pursuer. She confirmed the first pursuer's evidence of how the deceased had sought to contact the first pursuer, via her daughter, following his return home from hospital. She had no knowledge of the deceased having proposed to the first pursuer prior to his admission to hospital.
The first witness led on behalf of the defender was his brother, Alexander Grant. He had left home in 1986 but remained in contact with his father thereafter. He was on good terms with his father. In November 1992 his father told him that he was going to sign the farm and all his property over to the defender, as the defender had worked there all his days. The deceased said that he had been instructed by the solicitors in Inverness to tell Alexander what he was doing. He said that he did not want any strangers on the farm if he was to die or re-marry. The idea was for the deceased to retain the holiday homes (so as to provide him with an income), a life tenancy of the farmhouse, and a plot of land on which he intended to build a house. There was a European grant scheme under which he could build a house, lease it out for four or five years and then it would become his. Alexander described his father as a very strong-willed man and an astute businessman. If he did not want to do something, he would not have done it. Alexander visited his father regularly when he was in hospital. Other than a problem with his mobility, he was as he always was. He was an avid reader in hospital. On about 22 February he told Alexander that the first pursuer had come into the hospital and asked him to sign blank cheques and a sheet of A4 paper. He also said that some cheques for his holiday home business, and the chequebook, had disappeared. He was very worried about this. He said that he had instructed the defender to throw the first pursuer out, but the defender had said that he could not. He had then told the defender to go to the solicitors to get her out. Alexander went with the defender to see the solicitor, Craig Wood. Mr Wood told them that he would have to see the deceased and obtain his instructions. The first pursuer had previously told Alexander that she would not look after the deceased after he came out of hospital. Alexander learned of his father's marriage when he telephoned his father on Father's Day and was told that the wedding had taken place the previous day. He never spoke to his father again. He became involved in litigation against his father. He learned of his father's death from the newspaper. His father had been cremated a week previously. In cross-examination, Alexander accepted that his father had been obsessed with the first pursuer prior to becoming upset about the cheques. He was unable to explain why Craig Wood's note of his meeting with the defender and himself implied that it was the sons, rather than the father, who wanted rid of the first pursuer. I had reservations as to Alexander Grant's reliability as a witness. I did not regard him as being dishonest in his evidence, but his recollection appeared to be coloured by his emotions to such an extent as to be not wholly reliable. I was also struck by his rather truculent manner. The impression which I formed of him was similar, in those respects, to the impression which I was forming of his father.
The next witness was the defender. I should say at once that I formed a favourable impression of him as a witness. He appeared to me to be an honest and straightforward witness. At the same time, he was rather combative and inflexible, and when under pressure was inclined to bluster. There appeared to me to be a marked family resemblance between the characters of the defender and his brother, Alexander, and also that of their father as it appeared to me. All three appeared to be strong-willed men, with strong emotions and a tendency to be headstrong.
In his evidence, the defender described how he and his father worked together on the farm. His father took all the major decision, and was primarily in charge of day to day management as well. The defender would go to the farmhouse in the morning and his father would tell him what they would do that day. The defender followed his father's instructions. The deceased made known to the defender before 1990 that his ultimate intention was to retire, leaving the defender the farm and the farmhouse, retaining the holiday lodges (to provide an income) and building a house for his retirement. From at least 1990 the farm business suffered severe financial difficulties, resulting in the sale of the caravan site (which belonged to the deceased, enabling him to introduce additional capital into the business), then housing plots and ultimately the cattle. The deceased sought advice about retirement. He was initially advised that there would be tax planning advantages in transferring the farmhouse and farm to the defender, but subsequently was told that there were no such advantages. He wanted to go ahead with such transfers in any event, as that was what he had always intended on his retirement. He would have a substantial "pension" from the holiday home lettings, the State pension and a Rural Enterprise Scheme grant (a European-financed scheme to encourage agricultural diversification) for which the deceased would remain eligible as the tenant of the croft at Toum. By December 1992 the deceased was all but clear in his own mind as to what he wanted to do, and the discussions with professional advisers were coming to a conclusion. In relation to the farm, it had been decided that the cattle would be sold, the farm would be transferred to the defender and the house sites would be sold to reduce the overdraft. It was understood that the farmhouse would be conveyed to the defender, with the deceased retaining a liferent.
The first pursuer arrived in about April 1992. She moved out of her chalet (which was already let for the Easter holidays) and into the farmhouse. It was not clear to the defender what her relationship was with his father. When the deceased was taken to hospital, the first pursuer told the defender almost immediately that she would not be looking after the deceased in future. Subsequently the deceased became concerned about cheques which she had brought into hospital but had not given him. According to the deceased, she had also presented him with the chequebooks for the farm account and the chalet account and had asked him to sign blank cheques, and had also asked him to sign a blank sheet of A4 paper. He was angry about this when he spoke to the defender, and wanted him to eject the first pursuer from the house. The defender "was not keen, to say the least". The defender spoke to a nurse about the cheques. He was referred to a record in the nursing notes dated 27 February 1993, in the following terms:
"A bit worried these past few days as his son and housekeeper have not been getting on.
Son spoke to Nurse Smith stating that Barclay's ex-housekeeper, Marilyn MacDonald, had visited and told Barclay that she had left two cheques with the value of £225 approx. The cheques were made payable to W.B. Grant or possibly Mains of Garten are not present in locker. Mr Grant Jnr. stated that Mrs MacDonald was fired due to financial misdemeanours and it is possible that she may have kept the cheques".
This entry is somewhat different from the defender's evidence, and seems more likely to be reliable. According to the defender, however, he went to Sutherland & Co on his father's instructions, so that they would put the first pursuer out of the house. He saw Mr Innes and Mr Wood, and understood that Mr Wood intended to visit the deceased later that day. That evening he was told to go to Sutherland & Co's offices the following morning. When he went there, Mr Innes told him that the deceased had given instructions to Mr Wood, and that a letter of dismissal had been drafted. The defender then drove Mr Innes to the hospital to visit the deceased again, in order to get the letter signed. The defender was going to the hospital anyway to pick up his father's washing. Mr Innes read the letter over to the deceased and asked him if he was happy with it and wanted to sign it. The deceased signed the letter and asked the defender to take the washing away and bring him in shoes. This evidence was inconsistent with that of Mr Innes (that he had not been present when the letter was signed), but I preferred the defender's evidence on this point: either he had a very clear recollection, or he was fabricating; and I regard the former as more likely. The deceased dealt with business matters concerning the farm while in hospital. He had numerous visitors, including the defender and his family, Alexander Grant and his family, the deceased's brother and sister and several friends. He was not isolated. He read prolifically and did crossword puzzles. By 1 April the deceased was coming on well and was in and out of the hospital. The defender had discussed those outings with Dr Mathers and had been given carte blanche, provided the nurses were informed. The deceased enjoyed outings, such as visits to the farm to view the sheep. There was no problem with his mental condition, although he was affected physically and required to use a stick.
Some days before 1 April the deceased told the defender that he wanted to be taken out of the hospital that day, as he had instructed Mr Innes to prepare a disposition for him to sign. On 1 April the defender took the deceased home to the farmhouse. Having Mr Innes round was like a social event. The defender's wife, Lyn, went to the bakers for buns for the tea. It was a big day for them all. The deceased had lunch and telephoned relatives. The defender then left him and went to work on the farm. Two cows calved that afternoon. Lyn came out and told him that Mr Innes had been there for quite a while. The defender finished the calving and cleaned up, then went into the farmhouse. The deceased and Mr Innes were having tea and biscuits. They were chatting and joking. Mr Innes took a document out of his briefcase and told the deceased that it was the document he had had him draw up. Mr Innes read the document aloud, then passed it to the deceased and told him to read it for himself. The deceased read it and handed it back to Mr Innes, who handed it to the defender to read. The defender asked the deceased if he was happy with it, and the deceased said that he was. The deceased then signed it. He did not take particularly long to read it. He asked Mr Innes why the disposition of the farm was not included in the document, and Mr Innes responded that he had not had time to prepare it. The deceased asked Mr Innes when he could come back to do that. He told Mr Innes that he wanted him to prepare a disposition of the farm and come back again to have it signed. He more or less scolded Mr Innes. Mr Innes said he could come back the week later. After the deed had been signed, the defender saw Mr Innes out to his car. When the defender returned to the house, the deceased explained to him the effects of the deed. He told the defender that he had retained the liferent of the house, so that he would have it as long as he lived. He wanted the defender and his family to move into the house on his death and to use it as the family home. He did not want them ever to sell it, unless they had obtained the defender's uncle's farm by then. In that event, he wanted them to let out the farmhouse.
I had the impression at the time this evidence was given that the defender was telling the truth. The circumstantial details - such as the deceased asking why the farm was not dealt with in the disposition - struck me as having the ring of truth about them. I also had the impression throughout the defender's evidence that he was an honest witness - albeit not always reliable - and I did not think it likely that such circumstantial details would be either invented or unconscious distortions of memory.
On 8 April Janetta Mackenzie collected the deceased from the hospital. That was an arrangement the deceased had made with her. The defender arrived late again, by which time Mr Innes had had tea with the deceased. Mr Innes read over the disposition. He then gave it to the deceased, and the deceased read it over. Mr Innes then spent some time going over the document with the defender (who was also to sign it as one of the partners), before it was signed.
According to the defender, he also executed a will in favour of the deceased, on Mr Innes's advice. The purpose of the will was to ensure that the house and the farm reverted to the deceased in the event that the defender pre-deceased him.
The defender maintained that there was never any suggestion that Lyn was going to leave him if the first pursuer remained. Nor had he suggested that he would leave.
The engagement of Morag McMillan had been on the deceased's instructions. The deceased had drafted the advertisement himself, in the farmhouse, and asked the defender to place it in the local newspaper. The replies were addressed to the deceased at the farmhouse, and were opened by him there. He came out of hospital specifically to deal with them. He interviewed candidates in the farmhouse. The defender was not involved in the interviews. None of the interviewed candidates was suitable. Some further letters arrived, which the defender took into the hospital. One of the letters was from Morag McMillan. It was postmarked 30 April 1993. The deceased was keen to see her, and asked the defender to go and see her. The defender went with Lyn, but Miss McMillan was not at home. The defender left a note, and Miss McMillan got in touch. The deceased came out of hospital to interview her. The defender was not involved. The deceased decided to employ her. Some time afterwards, the deceased told the defender that he was going to sack Miss McMillan. When asked why, he said that he was taking the first pursuer back. He subsequently told the defender that he had sacked Miss McMillan. Miss McMillan herself told the defender that she had left of her own accord. The deceased's diary entry for 22 May ("William put Morag away") was untrue. The defender thought Miss McMillan was an excellent housekeeper, and he was amazed when the deceased said he was going to sack her. The diary entry for 21 May ("Hit Will with stick, he was going to attack me") was also untrue. Lyn had been to the house and had received some cheek from the deceased's friend, Mr Kelman, which had upset her. When the defender found out, he went into the house in an angry mood, and "just barged in". He asked Mr Kelman what he had said to Lyn to upset her, speaking in a raised voice. The deceased got up and tried to beat the defender about the head with his stick. The defender put his arms up and was struck on the wrist. The stick broke. The deceased told the defender to get out, and he did. He was never in the house again. He had to have his wrist X-rayed at the local hospital. He still had a bony knob on his wrist where he had been struck. This evidence, with all its circumstantial details, again appeared to me to have the ring of truth about it. I prefer to accept Miss McMillan's account of how she came to be engaged, but otherwise I am prepared to accept the defender's account as generally reliable.
The defender described his father as a single-minded and strong-willed man. He was physically imposing, and a tough individual. He had a two-thirds share in the farm business, but took almost all the decisions. He wanted to be involved in business decisions while he was in hospital, such as those concerning the sale of the cattle and negotiations with the bank. Asked whether he had cajoled his father into disposing of property, the defender replied that he found that an extremely hurtful and repugnant allegation. It was rubbish: his father was not the type of man one would attempt to cajole. His father had been in control of the situation. The defender had not given any instructions to Mr Innes: he had not spoken to Mr Innes since their discussions about the first pursuer's dismissal, in February.
The defender described the breakdown in relations following his father's marriage to the first pursuer. He was clearly upset by the breakdown. He described how he learned of his father's death when he was telephoned by an elderly aunt who read the announcement out of the Press & Journal to him. She was extremely distressed. That was a week or so after his father's death. He had been cremated in Aberdeen, without any relatives or anyone in the village being informed. The family still did not know the whereabouts of his ashes. They had asked the first pursuer, but to no avail.
The defender described how a "very unpleasant" situation had developed between the first pursuer and himself and Lyn, following the deceased's admission to hospital. He accepted that, after the problem with the cheques, he had removed antique furniture and his father's guns from the farmhouse. He had done so on his father's instructions. The police were also involved, and had recovered the chequebook from the first purser. After the first pursuer was dismissed, he had changed the locks on the farmhouse, on the advice of the solicitors. Following his father's re-marriage, there had been numerous petty incidents between the deceased and the first pursuer on the one hand, and himself on the other.
During cross-examination the defender became rather emotional at times, describing the first pursuer, for example, as a "raving lunatic". This was all of a piece with the general impression which I had formed of him, and for that matter of his brother and his father. I at no time had any sense that he was someone who was likely to tell lies deliberately, or to scheme, or to bully or intimidate his father or take advantage of his illness. On the contrary, the overwhelming impression I formed was that he had great respect for his father, amounting almost to awe; and that he was affectionate towards his father, albeit relations had soured after the deceased's re-marriage. He said that his father was the last man he would have wanted to fall out with.
The defender was asked about Mr Wood's attendance note of the meeting on 23 February, which is in the following terms:
"Attendance along with our Mr Innes on young William Grant and his brother, Alexander.
Discussing at length the difficulties which they were having with a lady called Marilyn MacDonald 44 years, a divorcee who had come to live under their father's roof some 10 months ago as housekeeper. She is one of approx. 12 ladies who have acted as housekeeper over the recent years and she now appears to have a hold on Barclay Grant who, according to her son, is obsessed with her. He now wishes to give her a working interest in the farming partnership and to undertake the bookings etc of the chalets. Mr Barclay Grant had a minor heart attack a few days ago and is presently in Ward 7C Room 19 Raigmore Hospital. Agreeing to go and see him. Some of the background here involves young William Grant having been advised by his own wife that she intended leaving if Marlene continues to stay. She is a woman with a dreadful temper and is quite capable of pulling tufts of her own hair out in her hands when in such a state. She has also told the boys privately that if Barclay Grant is not fit to look after himself when he comes out of hospital she is off".
The defender acknowledged that this note differed in some respects from his own evidence. Lyn had no intention of leaving for good. They had been having such problems with the first pursuer that Lyn was going to stay with her parents in Elgin. The defender had never told his father that Lyn was leaving, or that he himself intended to leave the farm: he would not have said that, because it was untrue, and would in any event have caused his father very great upset. He could not possibly have left the farm. He was "tied hand and foot to the place": it was his life. The defender agreed that, following the deceased's stroke, the deceased could not have looked after the stock on his own. The defender gave a similar account to that of Morag McMillan of what passed when he was told by the deceased that he was taking up with the first pursuer again. The defender said that he had told his father, "You do what you want to do, but I want nothing to do with her", to which his father responded, "Get out of this house if that's your attitude, and don't come back". The second part of the deceased's diary entry for 18 May ("... and for not signing chalets over to him") was a total fabrication, which did not look as if it had been written at the same time as the first part ("William fell out with me for going to see Marilyn"). I agree with that assessment.
The defender's wife, Lyn, did not give evidence. It was explained in evidence, and was not disputed, that she was in a persistent vegetative state following an accident, and that proceedings for authority to terminate her treatment were currently before the court.
The next witness was Mrs Margaret Terrace, who was the deceased's niece. She had visited the deceased every weekend in Raigmore, and every day in the Ian Charles Hospital. She confirmed that he had many visitors, including family, farming colleagues and other friends. In Raigmore, he had been in good spirits. The stroke had not affected him mentally, although he had difficulty in walking. He was his usual self. He was reading and doing crosswords. He was quite demanding. He wanted fruit taken in, and to be supplied with expensive magazines such as the Shooting Times and Trout and Salmon.
The final witness was Craig Wood. Not surprisingly, he did not have a full recollection of events in February 1993, and was dependent on his notes. He struck me (like Mr Innes) as being rather vague on matters of detail, something which is entirely understandable in the circumstances. On the other hand, he was able to give convincing evidence as to the deceased's personality. He had known the deceased since the early 1970s, and knew the family as well.
The attendance note quoted above had not been made at the time of the meeting on 23 February but had probably been dictated the following day. The notes actually made at the time were very brief:
"Marlene MacDonald (44) divorced.
Ward 7C Room 19.
There 101/2 months.
Divide family.
Wife gone to Elgin.
Pulls out hair.
17 housekeepers - last 5 years.
Only staying if he is fit".
Mr Wood could recall "some" of the meeting. He had refreshed his memory by looking at his attendance note. In his evidence, he said that the defender could foresee difficulties with his own future arising from the deceased's desire to give the first pursuer an interest in the partnership. This suggestion - that the first pursuer might be given an interest in the partnership - is something of which both the first pursuer and the defender denied all knowledge, and I am sceptical whether Mr Wood understood the position correctly. I can readily imagine the defender being nervous and voluble at such a meeting, in which case it would not be surprising if misunderstandings resulted. Mr Wood could not recollect being told that Lyn was going to leave home, but presumed that he had been, given the terms of his note. Once again, I suspect that this was a misunderstanding: the defender might well have told Mr Wood that the problems were such that Lyn intended to go to stay in Elgin; and Mr Wood might not have picked up that this was merely a temporary arrangement. Be that as it may , Mr Wood decided to speak to the deceased to "ask him if he was aware that there was a problem back at the ranch". He did not recollect what he had in fact said to the deceased, but stated in evidence that he would have said, "You've got Alexander very unhappy, William very unhappy, Lyn threatening to leave, so give thought to where the future lies". He saw the deceased at Raigmore but obtained no instructions from him. His attendance note states:
"Attendance on Barclay Grant at Raigmore Hospital. Advising of problems as we perceived them with his son, William, and a lady called Marlene MacDonald who was acting as his housekeeper. He will give due thought to the matter and speak to his son no doubt later tonight".
He found the deceased as he had always known him (he had known him for twenty years). He was alert, very affable and easy to communicate with. His demeanour had not changed. He had no difficulty understanding what Mr Wood had said. It was immediately clear that the man was very much with it. Mr Wood had no impression of the stroke having affected him (indeed, his note refers to "a minor heart attack"). Later that evening he spoke to the defender on the telephone. His attendance note states:
"Having spoken to his father, it appears that Barclay Grant has now seen the need to dismiss Marlene MacDonald. He will tell her himself tomorrow and will offer her one week's wages in lieu thereof. He will also probably ask young Mr William Grant to have our Mr Innes draw up a suitable letter of termination of Marlene MacDonald's employment".
Giving his general impression of the deceased, Mr Wood said that he had always been a powerful person. He was not a poor soul. He was very prudent and very thoughtful. He would take a lot of advice before he would move. He was not to be trifled with. He made up his own mind on everything.
In cross-examination, Mr Wood accepted that he had been the bearer of the tidings that the first pursuer was potentially dividing the family, and that the source of this news had been the defender and Alexander Grant.
Before considering parties' submissions on the merits of the action, I have first to consider an issue relating to the admissibility of evidence. Counsel for the defender, renewing an objection which had been taken timeously, submitted that the evidence given as to the contents of Mr McWilliam's attendance notes was inadmissible. Those notes (quoted above) related to conversations which Mr McWilliam had had with Miss Mackenzie and with the deceased. Counsel for the defender submitted that the evidence was inadmissible both at common law and under the Civil Evidence (Scotland) Act 1988. In relation to the common law, it was submitted that the inadmissibility of evidence of a precognition extended also to statements made with a view to litigation, on the authority of Traynor's Executrix v Bairds & Scottish Steel Ltd 1957 S.C. 311, 313, and Young v National Coal Board 1960 S.C. 6, 8. In relation to the 1988 Act, it was submitted that the exclusion of statements in precognitions from the scope of the provisions relating to the admissibility of hearsay evidence (by virtue of section 9 of the Act) should be construed as extending to statements made with a view to litigation. I was referred to a considerable amount of material concerned with the background to the 1988 Act, its interpretation, and the scope for distinguishing between a precognition and the solicitor's recollection of what was said to him during the process of precognosing the witness. It is not necessary for me to explore these issues of law, as I do not accept the proposition of fact on which the submissions were based, namely that the statements in question were made with a view to litigation. I accept Mr McWilliam's evidence that he spoke to Miss Mackenzie and the deceased at a time when he had only limited information and understood that the deceased required advice. He did not have court proceedings in mind. The only other witness whose evidence shed any light on the circumstances in which these conversations took place was the first pursuer. Her evidence also suggested to me that the deceased had initially consulted Mr McWilliam with a view to obtaining advice, and there was no suggestion in her evidence that litigation was at that time in prospect. In these circumstances, even assuming that the principle stated in Traynor's Executrix is correct and has survived the enactment of the 1988 Act, it has no application in my opinion to the circumstances proved in the present case.
In relation to the merits of the case, counsel for the pursuers submitted that the deceased's will had been overborne as a result of pressure exerted upon him by the defender. It was suggested that I should take as my starting point the visit by the defender and his brother to Mr Innes and Mr Wood on 23 February 1993. That visit had been prompted by the defender's fear of what might happen as the result of his father's obsession with the first pursuer. The defender was concerned that the deceased might give the first pursuer an interest in the partnership, contrary to the defender's own expectation of taking over the business as had been discussed over the previous year or so. The defender went to the solicitors, with his brother, and told a tale of impending family division: Lyn was leaving, or had already left, and the defender himself might leave. Mr Wood then went to the hospital and relayed this tale, unwittingly presenting the deceased with the loaded choice which the defender wanted to be presented to him. The deceased did not give Mr Wood any instructions at that time. Instructions only came after the defender's visit to the hospital that night. It was plain that the deceased's decision to sign the letter of dismissal - contrary to his own desire that the first pursuer should stay - was the result of the loaded and inaccurate choice presented to him, in consequence of the defender's desire to achieve his objective of removing the danger to his own expectation of succeeding to the deceased's property.
That episode, it was submitted, was the key to understanding why the deceased had also, while a hospital patient, signed the disposition of the farmhouse, the disposition of the farm, the letter of resignation and the codicil. It was significant that after his discharge from hospital, in May, he had resumed contact with the first pursuer. The only reasonable inference was that the deceased's will - which had been overborne when he signed the letter of dismissal - continued to be overborne until after his discharge from hospital. This pointed to the truth of the account given by Miss Mackenzie to Mr McWilliam as to the circumstances in which the documents were signed on 8 April. That in turn indicated the circumstances in which the disposition of the farmhouse had been signed on 1 April. That disposition had been signed by the deceased through his will being overborne as the result of his natural desire to pass on the family farm and farmhouse to his son, and his anxiety on it being represented to him, with Mr Wood as the unwitting conduit, that the first pursuer's continued presence would prevent the fulfilment of that desire and would cause the family to be broken up. That false picture wore off after the deceased got home and started thinking about what had happened. In these circumstances, what had happened constituted grounds for the reduction of the disposition of the farmhouse, either on the ground of undue influence, or on the ground of facility and circumvention. Various authorities as to the scope of these concepts were referred to.
Counsel for the defender, on the other hand, disputed this interpretation of the evidence, and the attempt to link the signing of the disposition on 1 April to the signing of the letter of dismissal in February. Counsel invited me to accept that the deceased remained a man of full intellectual capacity, and a man with a strong will, who was unlikely to be overborne by his son. There was a perfectly understandable explanation as to why the disposition had been executed, given that such a step had long been envisaged, and the circumstances made it natural for the deceased to decide that it was an appropriate time for him to retire. He had had independent legal advice from his own solicitor.
The pursuers start in this action from a position of strength, since the disposition in question was a gratuitous alienation of the deceased's home granted at a time when he had suffered a stroke and was still a hospital patient. The averments on record paint a pitiful picture of a man who was in a debilitated condition and was kept, by his son, isolated and deprived of visitors; who was unable to obtain independent advice; and who was repeatedly cajoled and pressurised by his son into signing documents which he was not even able to read. The longer the proof continued, however, the clearer it became to me that these averments have no foundation in fact.
In my opinion, the pursuers have failed to establish facility, or circumvention, or undue influence. I am satisfied on the evidence that the deceased executed the disposition in question of his own free will, and in full awareness of what he was doing. I reject the deceased's own accounts to the contrary as untrue, and I also reject the account given by Miss Mackenzie to Mr McWilliam as being equally untrue. I have explained earlier in this Opinion my reasons for that assessment of the evidence. I accept the evidence, as to the circumstances in which the disposition was instructed and executed, of the defender and Mr Innes. There is no doubt in my mind that the deceased was in full possession of his faculties at all material times, on the evidence of Mr Wood, Dr Kerr and Dr Mathers, as well as numerous other witnesses. I am equally satisfied that he retained his strength of character and of will, on the evidence of Mr Wood, Mr Innes and Dr Mathers, amongst other witnesses. On the evidence which I accept, and in particular that of Miss McMillan, Mr Innes and the defender himself, I reject the suggestion that the defender was on other than amiable and respectful terms with his father at the material time, or sought to impose upon him in any way. In particular, I reject the suggestion that the defender pressurised, urged or persuaded his father, or otherwise abused his relationship with his father in any way, so as to get him to sign the disposition in question.
In these circumstances I shall sustain the defender's second and third pleas-in-law and grant decree of absolvitor.