Lows v. Guthrie and Another (Low's Trustees) [1907] ScotLR 925 (16 July 1907)

Lows v. Guthrie and Another (Low's Trustees) [1907] ScotLR 925 (16 July 1907)

The will was ex facie regular and duly tested. The evidence of Mrs Lyall alone, contradicted by Guthrie and the circumstances, was insufficient to prove lack of proper attestation. The onus was on the pursuers to prove invalidity, which they failed to do. There was no evidence of fraud or undue influence by Guthrie. The deposition taken to lie in retentis could not be used to contradict Lyall's in-court testimony.

Citation
[1907] ScotLR 925
Parties
Pursuers: William Low or Forrest and David Low or Forrest; Defender: James Guthrie; Defender: David Spence
Jurisdiction
Scotland
Judgment Date
16 July 1907
Procedural Posture
Action of Reduction and Count, Reckoning, and Payment / Inner House Appeal From Lord Ordinary's Decision
Outcome
Appeal allowed; decree of reduction recalled; defenders assoilzied (absolved).
Legal Topics
Attestation of Wills, Undue Influence, Onus of Proof, Competency of Evidence, Reduction of Deeds
Wills and Succession Evidence Trusts and Trustees Attestation of Wills Undue Influence Onus of Proof Competency of Evidence Reduction of Deeds

Case Brief

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Parties

William Low or Forrest and David Low or Forrest

Pursuers

James Guthrie

Defender

David Spence

Defender

Procedural Posture

Action of Reduction and Count, Reckoning, and Payment / Inner House Appeal From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether the will of William Low was invalid for want of proper attestation under the Act 1681, cap. 5 and Conveyancing (Scotland) Act 1874, sec. 39
  2. 2 Whether the will was obtained by fraud or undue influence by James Guthrie, a residuary legatee and preparer of the will
  3. 3 Whether a deposition taken to lie in retentis can be used to contradict a witness who later gives evidence in court

Ratio Decidendi

The will was ex facie regular and duly tested. The evidence of Mrs Lyall alone, contradicted by Guthrie and the circumstances, was insufficient to prove lack of proper attestation. The onus was on the pursuers to prove invalidity, which they failed to do. There was no evidence of fraud or undue influence by Guthrie. The deposition taken to lie in retentis could not be used to contradict Lyall's in-court testimony.

Court Disposition

Appeal allowed; decree of reduction recalled; defenders assoilzied (absolved).

Orders

  • The will of William Low is upheld as valid and effectual.
  • The defenders are assoilzied from the conclusions of the summons.