S MCG AGAINST M N (AP)
SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON
[2016] SC LIV 28
Case Ref: A150/13
JUDGMENT
OF
SHERIFF SUSAN A CRAIG
ADVOCATE
In the cause
S MCG
Pursuer
Against
M N (AP)
Defender
Act: McConnell, Advocate, Instructed by Messrs Beveridge and Kellas, Solicitors
Alt: Nicol, Advocate, Instructed by Duncan & Wallace LLP
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LIVINGSTON, 29 February 2016
The sheriff, having resumed consideration of the cause:-
Finds the following facts admitted or proved-
1. The pursuer is the executrix-dative of the deceased, S N.
2. The deceased died on 1 March 2008.
3. The deceased was the owner of a property at 48 N H, West Lothian (hereinafter “the property” or “N H”).
4. The defender is the deceased’s mother.
5. The deceased and the pursuer were in a close relationship from around 1992 until December 2004.
6. They had a daughter, S, who was born in May 1996.
7. Prior to April 1994 the deceased had expressed a wish to purchase heritable property.
8. He and the pursuer viewed the property at N H.
9. It was purchased in the name of the deceased on 26 April 1994.
10. The deceased took out a mortgage over N H to cover the purchase price.
11. That mortgage was in the deceased’s name.
12. The deceased purchased N H with the intention of letting it out.
13. The deceased referred to it in conversation as “his house” and his “place in B”.
14. Although the deceased never lived in N H he considered it to be his.
15. In 1994 the defender operated a sauna in Edinburgh.
16. For a time she was living in the sauna.
17. It was unsuitable living accommodation.
18. The deceased allowed the defender to move into N H.
19. The defender lived there from around 1994.
20. From that time she has mainly lived at N H although from time to time spent short periods away from the property.
21. The defender made payments towards the mortgage.
22. The mortgage had, from time to time, fallen into arrears.
23. From time to time the defender spent money on maintenance of the property.
24. At no time prior to moving into N H, and at no time thereafter until his death, did the deceased and the defender discuss the basis on which she was occupying the property.
25. There was no agreement, either verbal or in writing, between the deceased and the defender regulating the basis on which the defender occupied N H.
26. From the date of purchase until his death the deceased would have been entitled to instruct the defender to vacate N H.
27. The defender had at all times been aware that from the date of purchase until his death the deceased would have been entitled to instruct her to vacate the property.
28. The defender was aware that she would require to vacate N H if instructed to by the deceased.
29. There was a purported will of the deceased dated 2 May 1995.
30. That document was a forgery.
31. The pursuer raised an action of reduction of the purported will in the Court of Session.
32. In the course of that action the defender sought to rely on the purported will seeking to obtain title to N H.
33. The present action was commenced before the Court of Session action and was sisted to await its outcome.
34. The purported will was reduced by the interlocutor of the Court of Session dated 6 July 2012.
35. On 31 August 2012 the defender had a conversation with a solicitor, Michael Kemp, who was acting on behalf of the pursuer.
36. In the course of that conversation the defender agreed to move out of N H.
37. On 15 October 2012 the defender had a conversation with a solicitor, Graeme Duncan, who was also acting on behalf of the pursuer.
38. In the course of that conversation the defender again agreed to move out of N H.
39. In neither conversation did the defender suggest or claim to have any right or entitlement to occupy N H.
40. The first suggestion made by the defender that she was the beneficial owner of N H was in August 2013.
41. The defender did not move out of N H and continues to occupy the property.
Finds in fact and in law that –
1 No contract existed between the defender and the deceased in relation to N H.
2 The defender has no right or entitlement to remain in N H.
3 The pursuer, as executrix dative of the deceased, is entitled to require the defender to vacate N H.
Therefore –
1. Sustains the pursuer’s first and second pleas in law;
2. Repels the defender’s pleas in law;
3. Orders the removal of the defender, her family and dependents and sub-tenants, together with their goods and possessions, from the property known as and forming [address redacted]
4. Reserves meantime the question of expenses for further submission.
NOTE
Introduction
[1] This was an emotionally charged case raised by the executrix dative of a deceased person, S N, against Mr N’s mother. It was very clear throughout the proof that there was little love lost, at least on the defender’s part, between the parties. The defender spoke of the pursuer in unflattering terms and on a number of occasions expressed the view that the pursuer wasn’t “good enough” for her son. The defender was also adamant that the deceased was not the father of the pursuer’s daughter and accordingly that she, the defender, was not her grandmother. That was an incidental matter irrelevant to the proceedings but was emblematic of the loathing and contempt which the defender had for the pursuer.
[2] Family animosities aside, the true issue in the case was whether or not the defender had an entitlement to occupy a property at N H, West Lothian. It was a matter of agreement that the registered title to the property was in the deceased’s name. What was in dispute was whether there had been an arrangement entered into between the defender and her son such that she had a legally enforceable right to remain in the property notwithstanding that the pursuer had asked her to vacate.
[3] The defender said that she did have such a right – that while the deceased had taken title to the property they had agreed she was in a position equivalent to ownership and could not be asked to leave against her will.
[4] The defender sought to demonstrate that within her family it was commonplace for titles to properties to be registered in one person’s name where the true state of affairs was that another family member was entitled, of right, to occupy the property and could not be forced by the title holder to leave. She sought to establish that was the position in relation to N H. The defender’s attempts to lead evidence about such matters were objected to as incompetent (lack of record) and / or irrelevant (the issue was what, if anything had in fact been agreed about N H). These objections are dealt with below.
[5] The defender was ordained to lead at proof.
The Court of Session action
[6] After this action was raised a dispute arose between the parties with the defender claiming there was a will executed by the deceased in which he left N H to her. The pursuer raised an action of reduction arguing the will was a forgery. The action was defended with the defender arguing the will was genuine and that it genuinely reflected the testimonial intentions of the deceased.
[7] The present action was sisted to allow that action to be concluded. There was a proof following which an interlocutor was pronounced reducing the will, with a finding that it was a forgery (McGeever –v- Nicol [2012] CSOH 115).
[8] That interlocutor was not reclaimed.
The proof
[9] The Court of Session action having concluded, the sist in the present action was recalled and the matter went to proof. Evidence was led over a number of days and I heard from a number of witnesses:
· The defender
· J McS, her brother
· The pursuer
· Martin Lennie, a solicitor
· Graeme Duncan, a solicitor
The law
[10] Parties referred to
· The Succession (Scotland) Act 1964, Section 14
· The Requirements of Writing (Scotland) Act 1995, Sections 1 and 2 (“ROWSA”)
· The Law of Evidence in Scotland, Walker and Walker, 4th edition, paragraph 19.15
· Scottish Land Law, Gordon, 3rd edition, chapter 13
· Smith v Sabre Insurance Company 2013 SC 569
· The Advice Centre for Mortgages Ltd v McNicoll 2006 SLT 591
[11] While there was some uncertainty between parties about whether or not the principles of rei interventus and / or homologation were applicable to the issue of proof of any agreement (ROWSA came into force after the date on which N H was purchased), in the event and standing the findings in fact, the issue does not require to be resolved. However, as it is a matter that goes to proof of the existence of an agreement rather than to its constitution I would have found that sections 1 and 2 of the Act were engaged.
Submissions
[12] I heard lengthy submissions from the parties setting out, in detail, their respective positions. However there was no dispute between them in terms of the legal matrix within which the matter was to be determined and with all due respect to each of them the submissions can be summarised as follows:
· The deceased, as proprietor of N H, had the right to vacant possession unless it could be established that there was a binding agreement to the contrary
· On the deceased’s death, his entire estate vested in the pursuer as executrix-dative
· The pursuer was entitled to vacant possession of property unless such a binding agreement was established
[13] The pursuer’s submissions were to the effect that the defender had singularly failed to establish that such a binding agreement existed, arguing that even her evidence in chief fell well short of what would be required to establish a contract. Just as significantly, it was said, were the concessions that there was no discussion between the defender and the deceased about the basis on which she could occupy N H and that the deceased would have been entitled to instruct her to vacate the property. That being the case, it was said, decree should be granted in favour of the pursuer.
[14] The defender’s submission was that on the evidence the defender had made out her case. The evidence was that she had entered into an arrangement with the deceased under which he agreed to give her possession of the property on the common understanding that she would be put in a position equivalent to ownership of the property. That was a contractual relationship binding on him while he was alive and binding on the pursuer as his representative.
Discussion and decision
Observations on the evidence
[15] Turning then to the evidence, I heard first from the defender. She was a colourful character who had led a rather unconventional life. She would repeatedly refer to herself as a self-employed business woman and explained that the nature of her business was a licensed entertainment club or sauna. There was some evidence about her having a relationship with one of her employees and living, for a while, in the sauna. The defender spoke of having “lost everything, twice” as a result of debts due to various revenue authorities. She claimed that was behind the title to N H being taken in her son’s name, so that she would be under the radar of the authorities.
[16] In relation to the content of her evidence, the defender was rather prone to hyperbole and outbursts. While she was extremely forthright in her views about the pursuer, she was rather more elusive in explaining her position on certain matters. She gave the impression of someone who was rather bored and irritated by the whole proceedings and didn’t respond particularly well to close questioning in cross examination.
[17] On the whole I found her to be an unimpressive witness and not a witness on whom I could rely on points of conflict. From time to time however she did give evidence that rang true, including material concessions, but those had to be wrung out of her.
[18] In the course of her evidence the defender conceded that she and the deceased had not in fact discussed or agreed the basis on which she could occupy the property. She also conceded that the deceased would have been entitled to instruct her to vacate the property, and had he done so she would have to leave. It was her position that he would never issue such an instruction but, if he did, she agreed she would have to go.
[19] In matters of conflict I preferred the pursuer’s evidence over that of the defender except in relation to these concessions although, to be fair, they were consistent with the pursuer’s evidence i.e. that there was no agreement.
[20] Mr McS appeared to be a straightforward witness. He seemed a rather more modest individual than his sister and certainly clearer about the sometimes complicated family practices. Nevertheless, none of the evidence which he gave was relevant to the issue in dispute – what, if anything, was agreed between his nephew and the defender – and therefore was of no real assistance to the court.
[21] The pursuer was also someone who impressed as a straightforward witness who gave her evidence as best she could. I found her to be reliable and credible. I accepted her evidence about the circumstances which led to the deceased purchasing the property and, in particular, that it was not purchased by him as a surrogate for the defender but instead to form part of a portfolio of properties to be let out. That the defender should have moved into N H not long after it was purchased was entirely consistent with that evidence.
[22] In so far as the other witnesses were concerned, I found them to be reliable and credible. They only spoke to the conversations they had with the defender when she agreed to vacate the property after the will was reduced. While that was circumstantial evidence it was consistent with the concessions made by the defender in cross examination and in that sense corroborative of the evidence that she could only remain in the property while the deceased, and by extension, his representative, agreed to let her stay.
Objections taken at proof
[23] As I have touched on, a great deal of the evidence taken by and on behalf of the defender was taken under objection. Put shortly, the pursuer’s position was that evidence about any arrangements other than that between the deceased and the defender was irrelevant and, in any event, there was no record for such evidence.
[24] The defender’s position was that it was relevant as circumstantial evidence going to support the defender’s contention that it was common place within the family that such arrangements were entered into. It was said there was a record, pointing to a sentence in answer 4 that the arrangement was
“…similar to the arrangement that was already in place in relation to the property at [address redacted] where the title was held in the name of the defender’s husband T N, along with the mortgage in his name but the property was occupied and the mortgage was paid by SN who was the true owner with the beneficial interest in the property.”
[25] The evidence about family arrangements was admitted under the usual reservations of competency and relevancy.
[26] The defender had also sought to lead evidence about arrangements in relation to other properties, including a property at A T. It was the pursuer’s position that there was no record for that evidence. That objection is sustained. It is notable that there had previously been an attempt to introduce an amendment with averments about the A T property but the motion was refused prior to the proof, and not renewed.
[27] In relation to the evidence about properties other than N H, it was argued that such evidence was irrelevant. I agree, and sustain that objection. It is clear that whatever may have been the case between other family members, what was relevant to the issue before me was what had been agreed in relation to N H. The defender conceded there was no arrangement and she would have to vacate if asked. Therefore even if some different kind of arrangement was entered into in relation to [address redacted] or A T, or any other property for that matter, that was wholly irrelevant to the case before me.
[28] It is worth observing, however, that such evidence as there was about [address redacted] was to the effect that the deceased’s father in fact left the property to the pursuer, not the deceased, in his will. That will was not reduced and the pursuer became the heritable proprietor on his death. While some evidence was led about whether, and why, the pursuer had agreed to make a payment of around £40,000 to the deceased and then changed her mind, that too was irrelevant and the objection to that evidence is sustained.
[29] However if it did suggest anything it was that these family arrangements were not “writ in stone” and were capable of variation and adjustment as required from time to time. In particular, it suggested that the heritable proprietor was free to bequeath the property to whomsoever he chose and, in the case of [address redacted], that was to the pursuer notwithstanding the suggestion that the deceased was the beneficial owner.
Conclusions
[30] Notwithstanding the lengthy evidence about family arrangements, ultimately the matter turned on the concessions made by the defender that she and the deceased had not in fact discussed or agreed the basis on which she could occupy the property and if he had instructed her to vacate the property she would have to leave. It was her position that he would never issue such an instruction but accepted that if he did she would have to move out.
[31] Standing those findings the pursuer is entitled to the remedies which she seeks.
[32] I was not addressed on the issue of expenses. While the defender is an assisted person she was asked questions in the course of her evidence about the accuracy of representations made to the Scottish Legal Aid Board about her financial position. It is not clear if that is a live issue in the case and in the circumstances I will reserve the question of expenses meantime and await submissions thereon.
[33] Finally, and for completeness, while the pursuer advanced an esto case that if there was an agreement the defender was in breach by failing to maintain the mortgage payments, standing the principal findings it is unnecessary to resolve that case.
Sheriff Susan A Craig
Advocate
Livingston
29 February 2016