Rafique & Ors v Ashraf & Ors [2013] ScotCS CSOH_34 (05 March 2013)

Rafique & Ors v Ashraf & Ors [2013] ScotCS CSOH_34 (05 March 2013)

Only an action of reduction can invalidate the Scottish will; there is no proper plea of ope exceptionis and significant areas of the defences are irrelevant. Proof before answer is inappropriate without a supporting plea. The pursuers are entitled to proof at large, excluding specified irrelevant averments.

Citation
[2013] ScotCS CSOH_34
Parties
Pursuers: Mohammed Rafique and Others; Defenders: Mohammed Ashraf and Others
Jurisdiction
Scotland
Judgment Date
05 March 2013
Procedural Posture
Civil Succession/probate / Interlocutory (procedure Roll Debate and Exclusion of Averments Prior to Proof)
Outcome
Proof at large allowed, excluding specified averments; defenders' second plea-in-law repelled for want of insistence; expenses reserved.
Legal Topics
Validity of Wills, Forgery and Fraud in Testamentary Documents, Reduction of Deeds, Probative Value of Wills, Procedural Requirements for Challenging Wills
Succession Law Civil Procedure Validity of Wills Forgery and Fraud in Testamentary Documents Reduction of Deeds Probative Value of Wills Procedural Requirements for Challenging Wills

Case Brief

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Parties

Mohammed Rafique and Others

Pursuers

Mohammed Ashraf and Others

Defenders

Procedural Posture

Civil Succession/probate / Interlocutory (procedure Roll Debate and Exclusion of Averments Prior to Proof)

Legal Issues

  1. 1 Whether the foreign will of 2005 is a forgery and should be reduced
  2. 2 Whether the Scottish will is valid or was signed by an imposter
  3. 3 Whether a challenge to the Scottish will requires an action of reduction or can be raised ope exceptionis

Ratio Decidendi

Only an action of reduction can invalidate the Scottish will; there is no proper plea of ope exceptionis and significant areas of the defences are irrelevant. Proof before answer is inappropriate without a supporting plea. The pursuers are entitled to proof at large, excluding specified irrelevant averments.

Court Disposition

Proof at large allowed, excluding specified averments; defenders' second plea-in-law repelled for want of insistence; expenses reserved.

Orders

  • Proof at large allowed except for excluded averments in the Record of June 2012 (Answer 1, page 12 line 6 to page 13 line 9; Answer 2, page 15 line 10 to end; whole of Answer 3 except first three lines on page 18; page 31 sentence at 19E).
  • Defenders' second plea-in-law repelled.