Walker and Others v. Whitwells. Whitwells v. Walker's Trustees and Others [1914] ScotLR 438 (10 March 1914)

Walker and Others v. Whitwells. Whitwells v. Walker's Trustees and Others [1914] ScotLR 438 (10 March 1914)

By majority, the Court held that the testamentary writing was duly subscribed by the testatrix and by the nurse and son as witnesses attesting the subscription, notwithstanding the son's signature as witness was added after the testatrix's death. The delay and post-mortem signature were at most informality of execution, not fatal irregularity, and were cured by proof under section 39 of the Conveyancing (Scotland) Act 1874. The function of the witness is evidentiary, not dependent on a continuing mandate from the granter.

Citation
[1914] ScotLR 438
Parties
Petitioners/appellants: Harry Walker, John William Thomson Walker, and others (Walker's Trustees); Respondents: Henry Edward Leatham Whitwell (a pupil) and Edward Leatham Whitwell (his father and guardian)
Jurisdiction
Scotland
Judgment Date
10 March 1914
Procedural Posture
Petition Under Section 39 of the Conveyancing (scotland) Act 1874 / Inner House, Court of Session (first Division), Decision After Proof and Full Legal Argument Before Seven Judges
Outcome
Petition granted by majority; declaration made that the testamentary writing was subscribed by the granter and attested by the witnesses. Prayer for expenses to appeal to the House of Lords refused.
Legal Topics
Authentication of Testamentary Writings, Validity of Witness Signatures After Death of Granter, Interpretation of Conveyancing (scotland) Act 1874, Sec. 38 and 39, Probative Character of Deeds, Formalities of Execution
Wills and Succession Conveyancing Probate Law Authentication of Testamentary Writings Validity of Witness Signatures After Death of Granter Interpretation of Conveyancing (scotland) Act 1874, Sec. 38 and 39 Probative Character of Deeds Formalities of Execution

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Parties

Harry Walker, John William Thomson Walker, and others (Walker's Trustees)

Petitioners/appellants

Henry Edward Leatham Whitwell (a pupil) and Edward Leatham Whitwell (his father and guardian)

Respondents

Procedural Posture

Petition Under Section 39 of the Conveyancing (scotland) Act 1874 / Inner House, Court of Session (first Division), Decision After Proof and Full Legal Argument Before Seven Judges

Legal Issues

  1. 1 Whether a testamentary writing is validly executed when a witness signs after the death of the granter
  2. 2 Whether the subsequent addition of a witness's signature and designations after the granter's death is competent under the Conveyancing (Scotland) Act 1874
  3. 3 Whether such acts are mere informality or fatal irregularity

Ratio Decidendi

By majority, the Court held that the testamentary writing was duly subscribed by the testatrix and by the nurse and son as witnesses attesting the subscription, notwithstanding the son's signature as witness was added after the testatrix's death. The delay and post-mortem signature were at most informality of execution, not fatal irregularity, and were cured by proof under section 39 of the Conveyancing (Scotland) Act 1874. The function of the witness is evidentiary, not dependent on a continuing mandate from the granter.

Court Disposition

Petition granted by majority; declaration made that the testamentary writing was subscribed by the granter and attested by the witnesses. Prayer for expenses to appeal to the House of Lords refused.

Orders

  • Declared that the testamentary writing was subscribed by Mrs Isabella Thomson or Walker as maker thereof, and by Mabel Hayward and John William Thomson Walker as witnesses attesting her subscription.
  • Refused the prayer for an order on the trustees to make payment to enable appeal to the House of Lords.