[2014] CSOH 68



in the cause





First Defender;



Second Defender:


Pursuer: Locke; Gillespie Macandrew LLP

First Defender: Wallace; Drummond Miller LLP

9 April 2014

[1] The pursuer is the widow of the late William Grant Povey ("the deceased") who died on 23 July 2009. The first defender is the deceased's son. He is the pursuer's stepson. He is the executor nominate of the deceased.

[2] The pursuer avers that during 2002 and 2003 she and the deceased purchased a plot of land at [the pursuer's current address] and had a house built on the plot. She avers that the price of the plot and the construction costs were contributed to in equal portions by her and the deceased. The sellers disponed the property to the pursuer and the deceased as pro indiviso proprietors. The disposition contained special destinations of survivorship in terms of which the deceased's pro indiviso share was to pass to the pursuer in the event of him predeceasing her, and the pursuer's pro indiviso share was to pass to the deceased in the event of her predeceasing him. The disposition was registered in the Land Register on 2 April 2003. Between 2006 and 2008 the pursuer suffered from illness. On 19 August 2008 she signed a power of attorney appointing the deceased to act on her behalf. She avers that she understood it was to be used only in the event she became unwell again. In 2006 the deceased was diagnosed as having myeloma. By early 2009 he was terminally ill. He was admitted to hospital with pneumonia on 16 March 2009 and he remained in hospital until he died. On 25 April 2009, three months before he died, the deceased executed a disposition of the property in the following terms:

"WE, WILLIAM GRAHAM POVEY and MRS ISABELLE ADDISON POVEY, Spouses ... registered proprietors of the subjects and others hereinafter disponed without consideration being paid hereby revoke the survivorship provisions contained in Disposition by Alex Penman (Builders) in our favour, registered in the Land Register of Scotland on Second April, Two Thousand three DO HEREBY DISPONE to and in favour of us the said William Graham Povey and Mrs Isabelle Addison Povey and to our respective executors and assignees whomsoever heritably and irredeemably ALL and WHOLE the dwellinghouse and others known as and forming [the pursuer's address was stated] and being the subjects registered in the Land Register of Scotland under Title Number [the relevant number was stated] on Second April, Two thousand Three; WITH ENTRY as at the date hereof; and we grant warrandice: IN WITNESS WHEROF these presents are subscribed by the said William Graham Povey ..."

The disposition was then subscribed by the deceased twice, once on his own behalf and once as attorney for the pursuer, both signatures being duly witnessed.

[3] The pursuer avers that at the time of execution of the disposition by Mr Povey as her attorney she had recovered fully from her illness, having been discharged from hospital on 23 September 2008. She avers that between that date and the date of the disposition she signed various documents on her own behalf which the deceased also signed on his own behalf, including a standard security dated 26 January 2009. She avers that at no stage did the deceased or any of the solicitors involved take specific instructions from her as to her wishes in relation to evacuation of the contractual survivorship destinations, and that no stage was her consent obtained to the terms of the 2009 disposition or to the method of execution.

[4] At the date of the deceased's death the disposition of 25 April 2009 had not been registered in the Land Register. The pursuer avers that on 24 July 2009 solicitors purporting to act for her and the deceased submitted the disposition for registration and that they completed question 8 of Registration of Title Form 2 by indicating that no party to the dealing was subject to any incapacity or disability. The disposition was registered in the Land Register on 27 July 2009.

[5] The pursuer seeks declarator that title to the deceased's one-half pro indiviso share passed to her on his death by operation of the survivorship special destination; that she is entitled to be entered as sole proprietor of the subjects in the Land Register; and that the existing entry in the Register is inaccurate and requires deletion. She also seeks reduction of the 2009 disposition and an order ordaining the second defender to rectify the inaccuracy in the Register.

[6] The action is defended by the first defender. In the defences he admits that the deceased had not discussed the evacuation of the survivorship destination with the pursuer, and that at no stage were specific instructions obtained from her as to her wishes. He makes the following further averments:

"6. .... Explained and averred that W & A S Bruce were entitled to process the registration of the Disposition on 24th July 2009. Notwithstanding the date of execution of the Disposition, the executed Disposition together with instructions for its registration were not received by Mr Bruce until shortly before the death of Mr Povey. The Disposition together with Form 2 was sent to the Registers of Scotland on 24th July 2009 following the instructions of Mr Povey. At the time of submitting the Form 2 for registration the firm of W & A S Bruce were unaware of Mr Povey's death... even if Mr Povey was not entitled to execute the Disposition and instruct registration on behalf of the pursuer (which is denied) he was entitled to execute the Disposition as regards his own one-half pro indiviso share. In the absence of registration, execution of the Disposition by Mr Povey on his own behalf was sufficient to effect inter vivos evacuation of the survivorship destination over Mr Povey's one-half pro indiviso share.


8. ... As hereinbefore condescended upon, W & A S Bruce were entitled to complete the registration process following the instructions of Mr Povey. Registration of the Disposition was the final part of a single transaction in which W & A S Bruce were instructed in the performance thereof."

[7] The matter came before me for a procedure roll hearing. Each party had stated a preliminary plea to the relevancy of the other's averments.

The first defender's submissions
[8] Mr Wallace submitted that the pursuer's averments were irrelevant and that the action should be dismissed. He further submitted that the defences were relevant and ought not to be repelled.

[9] His principal submission was that while automatic infeftment had been well recognised under the feudal system of land ownership, it no longer had any place in the system of land registration which had been introduced by the Land Registration (Scotland) Act 1979. He was unable to direct me to any authority or textbook which supported his proposition, but he sought to derive some assistance from The Registration of Title Practice Book, paragraphs 2.12 and 6.17:

"What is registrable?

2.12 Section 2(4)(c) allows a much wider range of deeds and documents to be registered in the Land Register than can be registered in the Sasine Register. Any deed giving effect to a transaction or event capable of affecting a registered interest in land can be presented for registration in the Land Register .... Moreover, an event may be registrable where there is no transaction or deed at all. Examples include ... notification of the death of a co-proprietor holding under a survivorship destination. In the latter case the Keeper will register the change in title on production of the land certificate, the death certificate and evidence by way of an affidavit that the destination has not been evacuated...


6.17 In terms of rule 5(d) [of the Land Registration (Scotland) Rules 2006] the Keeper shall disclose in the proprietorship section of the title sheet 'the destination, if any, to which the interest in land is subject'... [A] special destination will be entered in the proprietorship section of the title sheet as it regulates and determines the proprietor's right and title to the registered interest...

It is common when a couple buy a house in joint names for the title to be taken 'to A and B equally between them and to the survivor of them'. Such a destination gives each party a half pro indiviso share in the property. If one dies before the other without evacuating the special destination by inter vivos or, where competent, mortis causa deed then that person's half pro indiviso share falls to the other automatically. In that event the Keeper will not issue a fully indemnified title to the survivor, or a person deriving title from the survivor, unless he is satisfied that the destination has not been evacuated. In these circumstances the Keeper will require to examine the death certificate, and evidence that the destination has not been evacuated. Documentary evidence of this latter nature is not easy to produce. For instance, even if a testamentary writing which does not evacuate the destination is produced, that in itself is not conclusive evidence that there is no other writing, testamentary or inter vivos, which does evacuate the destination ..."

Mr Wallace suggested that these passages backed his contention that there was no automatic completion of title under a special destination. He argued that on the death of the institute the substitute obtained only a personal right which was not made real until the Keeper registered the change in title. That had not been done. The 2009 disposition had been registered first. At the time of registration the deceased's solicitors had been unaware of his death. In any event their mandate to register it continued after his death because, in order to minimise loss, a mandatary may complete work instructed before the mandant's death: Stair Memorial Encyclopaedia, Reissue, Agency and Mandate, para 188.

[10] Mr Wallace's next submission was that a special destination could be evacuated inter vivos by a simple declaration to that effect. Here, even if there had been no effective alienation before the deceased's death, the 2009 disposition had nonetheless been an effective inter vivos evacuation by the deceased of the special destination affecting his pro indiviso share.

[11] Mr Wallace recognised that his submissions flew in the face of observations made in Fleming's Trustee v Fleming 2000 SC 206. He accepted that if those observations were correct the pursuer's averments were relevant, the defences were irrelevant, and that decree de plano would be appropriate. He submitted that the observations were obiter dicta and ought not to be followed. Rather, I should hold that the law was as stated in his submissions.

[12] If his submissions were correct the pursuer's averments anent the deceased having lacked authority/having acted in bad faith/ having been auctor in rem suam (which were denied) were irrelevant because they would not, per se, entitle the pursuer to reduction of the disposition. The appropriate remedy would be partial reduction (McLeod v Cedar Holdings Ltd 1989 SLT 620). Reduction of the disposition of the pursuer's pro indiviso share would suffice to place her in the position in which she would have been but for the suggested unlawful act. There should be no reduction of the deceased's disposition of his pro indiviso share to himself. The better view was that it was an effective conveyance, notwithstanding the observations in Board of Management of Aberdeen College v Youngson 2005 1 SC 335 at para 12: cf. Gordon and Wortley, Scottish Land Law (3rd ed), p.448 note 53; Gretton and Reid, Conveyancing (4th ed), pp.420-421, para 26-20.

The pursuer's submissions
[13] Miss Locke submitted that the pursuer's averments were relevant and that the defences were irrelevant. The defences should be repelled and decree de plano should be pronounced in terms of the first, second and sixth conclusions.

[14] It was common ground that a special destination of survivorship could be defeated by inter vivos alienation, but there had not been such alienation here. Even if, contrary to the pursuer's averments, the deceased had had authority to sign the disposition on the pursuer's behalf and had acted in good faith and had not been auctor in rem suam, the disposition had not been registered before the deceased's death. The special destination had been on the register and at the moment of death it had operated automatically so as to invest the pursuer with title to the deceased's one-half pro indiviso share (Fleming Trustee v Fleming, supra, per Lord Sutherland at p.209E-210B and Lord Caplan at p.215H-216D, 216G; Gretton and Reid, supra, pp.420-421, para 26-20). Under registration of title there was automatic completion of title, just as under feudal infeftment with registration in the Register of Sasines there was automatic infeftment (Fleming Trustee v Fleming, supra; Gretton and Reid, supra, p.416, para 26-09). Thus the subsequent registration of the 2009 disposition did not defeat the pursuer's title. Moreover, any authority (from the deceased qua individual and qua attorney) which the deceased's solicitors had had to register it fell with the deceased's death. Nothing they did after his death could affect the operation of the special destination.

[15] The special destination affecting the deceased's pro indiviso share was not evacuated by a mere declaration by the deceased that he no longer considered himself bound by it. That was plain from the authorities, including the discussion in Fleming's Trustee.

[16] The contention that even if the deceased had no authority to grant the 2009 disposition it operated as a disposition of his one-half pro indiviso share was unsound. It was not possible to sever the disposition in that way. It bore to be a disposition of the whole property to the pursuer and the deceased with a renunciation by each party of his/her contingent right to succeed to the other party's pro indiviso share. That was a very different proposition from a disposition by the deceased of his share to himself. Further, such a disposition would not be a valid conveyance because the deceased would not have been divesting himself of anything (Board of Management of Aberdeen College v Youngson supra at para 12). Even if the disposition did fall to be treated as being a disposition of the deceased's pro indiviso share to himself, in the absence of registration of the disposition before the deceased's death the destination was effective.

Discussion and decision
[17] I am in very substantial agreement with the pursuer's submissions. In my opinion the first defender's submissions are not well founded.

[18] Mr Wallace was unable to furnish any authority or textbook which supported his submission that, with a registered title, the substitute in a survivorship special destination does not automatically complete title on the death of the institute. The passages in the Registration of Title Practice Book on which he relied do not support his proposition. On the contrary, properly read they are inconsistent with it. More importantly, both his submissions are irreconcilable with the observations in Fleming's Trustee v Fleming, supra:

"I accept that a testamentary deed may revoke a special destination and also that such a deed will be unrecorded. In my view, however, it does not in the least follow that any unrecorded deed may have the same effect. Because of the special and privileged nature of special destinations in feudal law it is, in my opinion, to feudal law that one must look to see whether such a destination has been revoked. We are not here concerned with the question as to who has the beneficial ownership of the property, the sort of problem which arose in Sharp v Thomson. Ex facie of the register the substitute has an automatic right to become infeft in the property on the death of the institute unless some step has been taken by the institute to revoke that destination, and in my opinion any such revocation in order to be effective should be on the register. The position of the unrecorded will is, in my view, a special one and arises only because a special destination is testamentary in effect and therefore faces competition from a true testamentary deed. In relation to that competition the later will must supplant the earlier special destination. Looking to proper feudal principles, however, I am of the view that in the absence of competent mortis causa revocation the special destination must take effect unless there is some properly recorded inter vivos revocation. As counsel for the defender pointed out, there is no reason in principle why a trustee should be in a better position relying on his act and warrant than would be the holder of an unrecorded disposition." (per Lord Sutherland at p.209E-H (with whom Lord Allanbridge agreed at p.218D), emphasis added).

The permanent trustee in the sequestration of the late Mr Thomas Fleming (who is the pursuer in the case and the respondent in the appeal) seeks to establish in a question with Mr Fleming's widow a right to recover (or at least recover the value of) the deceased's half share of the house at 24 Dochart Avenue, Coatbridge. This house, which was the home of Mr and Mrs Fleming, was owned jointly by them with survivorship rights in favour of each created by special destinations in the disposition which constituted their title. This disposition had been registered in the Land Register of Scotland on 20 July 1987. The permanent trustee's main claim is that right to the deceased's half share of the house vested in him by virtue of the act and warrant pronounced in his favour following upon the sequestration of Mr Fleming on 11 July 1990. Mr Fleming died in January 1995 ...

In answer to the pursuer's claim the defender's counsel had contended that since the defender had a registered title she had acquired a real right to the disputed half share on the date when the deceased had died. It was accepted that Mr and Mrs Fleming had bound themselves not to defeat each other's right under the special destination by way of mortis causa deed but it was also accepted that each institute had the right to evacuate the special destination by inter vivos deed. However, it was contended that since the special destination in the defender's favour had been converted into an effectual registered right by the death of Mr Fleming, the deceased could only have prevented the passage of full title to Mrs Fleming if he had before his death granted a disposition which had been registered prior to the completion of the defender's infeftment ...

[T]he appellant did not dispute the authority of Steele v Caldwell and Smith v MacKintosh , which are to the effect that a special destination such as is the subject of this case can be evacuated by inter vivos deed. Indeed, the original disponees retain full enjoyment of their portion of the estate, and for example, the creditors of each can adjudicate in respect of each portion to secure payment of their debts. I find nothing curious about the fact that joint owners may want to regulate testamentary succession without intending to curtail freedom to alienate the property inter vivos. Special destinations of the kind we are considering are commonly found in family situations. A spouse may separate and want to sell his or her share; but if the parties retain the property until death, which would normally happen if they were cohabiting in the property then each, if surviving, will have the right to inherit. The general incidents of this kind of arrangement are well recognised. What is not specifically established, perhaps somewhat surprisingly, is what degree of inter vivos alienation is required before a special destination contained in a deed upon which infeftment has been taken can be said to be evacuated.

The respondent claims that upon sequestration the heritage passes to the permanent trustee so that the special destination is evacuated. However, it is difficult to see why this should be so in confrontation with a registered special destination ... In a case such as the present, where evacuation cannot take place by way of testamentary deed, the special destination is effectively a disposition of the institute's half share to the substitute, with conditions precedent, that it will only become effective on the survivorship of the substitute. Thus although the special destination is not a testamentary deed, it will only become operative on the death of the institute ... In Sharp v Thomson (in the Inner House) the Lord President gave an exhaustive and learned analysis of the distinction between real and personal property. A real right is a right which attaches to the property and is apt to be valid against the whole world. On the other hand a personal right is an aspect of the law of inter-personal obligations and its effect does not extend beyond the persons affected by it. These rights cannot be fragmented. There is no intermediate right between a real right and a personal right. In the House of Lords the Inner House was overturned on a speciality relating to the legislation governing floating charges but the Lord President's analysis of the general rights affecting property was not attacked. The effect of Sharp was to reinforce the traditional approach of Scots law that registration in the public records is the key to the creation and ranking of real rights in Scotland.

When a special destination, such as we have here, is found in a registered disposition and creates a conditional institution in the substitute dependent only on estate remaining with the original institute and on survivorship, then immediately that survivorship results, in the absence of prior evacuation of the estate, the survivor without taking any further step becomes fully infeft in the share of the deceased (McDonald, Conveyancing Manual (6th ed), para 31.17). At first sight it would seem odd if the survivor's apparent right to infeftment might be defeated by an unregistered disposition which happened to be floating about perhaps unknown to the survivor. The logical rule, consistent with conveyancing practice, is that the survivor's title could only be defeated by a competing title registered prior in date. Such a rule preserves the efficacy of the public records. It is agreed by parties that the institute has a right to evacuate the special destination inter vivos. Now if, as it has sometimes been put, the institute can 'do what he likes' with his own share then, if the matter can be as widely put as that, it would be possible for him to remove the special destination by a simple written declaration of his intention to deprive the substitute. However, it has never been suggested in the authorities that a special destination could be evacuated in this way. What has often been judicially declared is that the institute is free to make use of his share by disposing of it or disponing it inter vivos . The concept therefore is that the institute can defeat the special destination by getting rid of the property to his advantage or even gratuitously. This would be consistent with the expression used in relation to the matter which is 'evacuation'. The primary meaning of this term is 'to empty of contents'. An institute evacuates the special destination by releasing it from his estate but this can only be done effectively if the disponee completes his claim to it. It would be inconsistent with principle if the disponee from the institute could defeat the substitute survivor's right to infeftment by producing an unregistered deed when faced by a competing infeftment. The authorities are peppered with references to the institute 'evacuating' the special destination. This might suggest that some act on the part of the institute alone completes the evacuation of the special destination. However, I think the language is used in a broad sense. The institute can do no more than grant a disposition. The act of registering the disponee's title lies with the disponee, but, of course, the process of alienation is initiated by the disposition of the institute. Once the institute has done all he requires to do, it is for the disponee to protect his own title. In the situation we are considering the institute is dead so it is not unrealistic to look at the competition as being between the substitute and the institute's disponee. It is for the latter to convert his right into a full right to protect it....

The solicitor-advocate for the pursuer and respondent emphasised that certain special destinations can be defeated by testamentary deed. This, it was contended, indicates that in general special destinations can be defeated by something less than a registered deed. However, the fact is that special destinations are sometimes of a category that can be defeated by a testamentary deed of the institute. The capacity of the institute to evacuate the destination by such a deed is particular to destinations with no contrary contractual restriction on mortis causa evacuation. Where the destination intrinsically permits the institute to evacuate by mortis causa deed then clearly it is the incidence of such a deed which determines if the destination has been evacuated. The efficacy of a mortis causa deed, where there is competition between such deeds, does not depend on the date of registration but rather the date of execution and it is not the earlier deed but the later deed which prevails. Where evacuation by mortis causa deed is inapplicable, it is the competition between disponees which prevails, and in that situation the date of registration of a disposition is the critical factor." (per Lord Caplan at pp.213D-216G, emphasis added).

[19] Strictly speaking these observations were obiter, because what was in issue was the effect of an unregistered act and warrant on the registered special destination. Nonetheless, there was very full consideration of the effect of an unrecorded disposition by an institute, in a case where the title to the subjects in question had been registered in the Land Register. Lord Caplan also expressly dismissed the contention that a special destination could be evacuated by a simple written declaration by the institute of his intention to deprive the substitute (p.215H‑I). Such a dismissal is also implicit in Lord Sutherland's Opinion (with which Lord Allanbridge agreed): in his view any inter vivos revocation required to be "properly recorded" to be effective (p.209H). Accordingly, while the observations do not bind me, I regard them as being very highly persuasive. They appear to me to be in accordance with principle and authority. Nothing which Mr Wallace has said causes me to doubt them.

[20] The argument that the principle of automatic completion of title only applies to special destinations which have been registered in the Register of Sasines lacks substance. The Land Registration (Scotland) Act 1979 provided for a new system of registration in the Land Register, but other than, in effect, stripping out the feudal element, the rules relating to the creation of real rights of ownership remain essentially the same (Burnett's Trustee v Grainger 2004 SC (HL) 19, per Lord Hope at para 14). The court in Fleming's Trustee was well aware that the title to the subjects in question had been registered in the Land Register. That was the context in which the members of the court made their observations.

[21] It is erroneous to suggest that on an institute's death a substitute acquires only a personal right to the institute's property, and that his right does not become real until the Keeper alters the entry in the title sheet. That analysis ignores the fact that title to the subjects, including the special destination by the institute to the substitute, is registered in the Land Register before the institute's death (see eg Gordon and Wortley, supra, para 121). On the institute's death the substitute's contingent right becomes a real right, by virtue of the special destination. His completion of title is automatic. It is not dependent upon the Keeper altering the title sheet to reflect the change. The substitute may well wish to do that with a view to having his name entered on the title sheet as proprietor (and not merely as substitute to the institute) and to having the Keeper indemnify that title; but completion of his title occurs automatically on the institute's death.

[22] An inter vivos alienation defeats a special destination of survivorship because at the time of death the property is no longer owned by the institute (Fleming's Trustee, supra, per Lord Caplan at pp.215I-216B; Gretton and Reid, supra, para 26-20). Where, however, the institute has disponed the property to a disponee but the disponee has not completed title, the institute remains the owner. The disponee's rights to the property are personal, not real (Sharp v Thomson 1995 SC 455 per Lord President Hope at pp.461G-475E; Burnett's Trustee v Grainger supra, per Lord Hope at paras 12-19, Lord Rodger at paras 87-105).

[23] It follows that Mr Wallace's propositions appear to be inconsistent with principle; at odds with Fleming's Trustee; and unsupported by any authority. No support for them is to be found in the leading textbooks or other commentaries - quite the reverse: see Gretton and Reid, supra, paras 26-09, 26-10, 26-20; Reid and Gretton, 1999 Conveyancing, pp.64-66; Halliday, Conveyancing Law and Practice (2nd ed), p.1035, para 22-25; Brand, Steven and Wortley, Professor McDonald's Conveyancing Manual (7th ed), para 30.13; Gordon and Wortley, supra, para 121). Mr Wallace accepted that unless the observations in Fleming's Trustee are unsound the pursuer must succeed. In my opinion, for the reasons set out above, those observations are an accurate statement of the law. It follows that decree de plano should be pronounced in favour of the pursuer.

[24] I make the following further observations. (i) If the special destination was to be evacuated it required to be done before the deceased's death, otherwise at the moment of death the pursuer obtained a real right to the deceased's half share. It was not evacuated before his death, and no purported attempt to complete the requirements of evacuation after his death could change that. When the deceased's solicitors presented the disposition for registration the deceased's estate no longer had title to a share of the property. Registration of the disposition could not confer title on his estate. (ii) I agree with the view expressed in Gretton and Reid, supra, paras 26-13 and 26-19, that the benefit of a special destination may be renounced or discharged by the substitute (see also Reid and Gretton, "Washing out the destination: General Principles", Conveyancing 2005, p.74 at p.76). If this is done in a deed which is registered in the Land Register there is no doubt that the special destination will have been evacuated by the substitute's renunciation. In the present case if the 2009 disposition had in fact been granted by the pursuer and the deceased and had been registered in the Land Register it would have been effective to evacuate the special destination, notwithstanding that the disponers and the disponees were the same persons (cf. Board of Management of Aberdeen College v Youngson, supra, para 12). By granting the conveyance and having it registered the substitute in the special destination of each pro indiviso share would have renounced the destination. To put matters another way, all the parties having right would have joined together in altering the terms of the title (Gretton and Reid, supra, para 26-20; Reid and Gretton, Conveyancing 2005, supra, pp.77-78; Gordon and Wortley, supra, para 15-15, note 53). However, the disposition here was not registered, and it formed no part of Mr Wallace's argument that I should treat the unregistered disposition as being an effective renunciation by each of the pursuer and the deceased of the destination to him or her. The dicta in Fleming's Trustee suggest that an unregistered renunciation by a substitute would not be effective to evacuate a survivorship special destination: but that particular matter does not appear to have been addressed specifically in the arguments of counsel or in the opinions which were delivered. I prefer to reserve my opinion on it.

[25] That brings me to Mr Wallace's submission that, even if when executing the disposition on behalf of the pursuer the deceased had had no authority or had acted in bad faith or had been auctor in rem suam, the disposition would still have been an effective conveyance of his one-half pro indiviso share; and that in those circumstances the appropriate remedy would have been partial reduction of the disposition (so as to leave standing a disposition of the deceased's half share). I would not have accepted that submission. Firstly, a disposition by the deceased to himself of his half share would have been no conveyance at all (Board of Management of Aberdeen College v Youngson, supra, para 12). Unlike the scenario already discussed (where the pursuer and the deceased were disponers), the "rump" disposition would not have contained a renunciation by the substitute (the pursuer) of the destination in her favour; nor would all the parties have joined together in altering the terms of the title. Secondly, and in any event, I am clear that partial reduction would not have been an appropriate or adequate remedy for the pursuer (McLeod v Cedar Holdings Ltd, supra, per Lord Justice Clerk Ross at pp.623B-624F, per Lord McDonald at p.624J-K). It would not have returned her to the position in which she would have been but for the suggested unlawful act. The disposition bore to be a disposition of the whole property to the pursuer and the deceased in common, with a renunciation by each party of his/her contingent right to succeed to the other party's pro indiviso share. That is a very different proposition from a disposition by the deceased of his half share to himself with a purported "revocation" of the pursuer's right as substitute in the destination affecting the deceased's half share.

[26] I shall sustain the pursuer's first and second pleas-in-law, repel the defender's first plea-in-law, and pronounce decree de plano in terms of the first, second and sixth conclusions of the summons. I shall reserve all questions of expenses meantime.