Foley v. Costello [1904] ScotLR 41_286 (06 February 1904)

Foley v. Costello [1904] ScotLR 41_286 (06 February 1904)

The Court held that under Scots law, subscription is an inflexible requirement for the validity of a holograph will; the absence of subscription cannot be remedied by extrinsic or parole evidence, regardless of the testator's intentions or surrounding circumstances. The document in question, though holograph and intended as a will, was not subscribed and therefore could not receive effect as a valid testamentary settlement.

Citation
[1904] ScotLR 41_286
Parties
Pursuer and Reclaimer: John Joseph Foley; Defenders and Respondents: Hubert Costello and others (next-of-kin of Ethel Frances Costello); Defenders and Respondents: Minor Defenders and Respondents and their Curator ad litem
Jurisdiction
Scotland
Judgment Date
06 February 1904
Procedural Posture
Civil (succession/testamentary) / Inner House, Second Division, Reclaiming Motion (appeal)
Outcome
action dismissed
Legal Topics
Holograph Wills, Testamentary Formalities, Subscription Requirement, Parole Evidence, Testamentary Intent
Succession Wills and Probate Holograph Wills Testamentary Formalities Subscription Requirement Parole Evidence Testamentary Intent

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Parties

John Joseph Foley

Pursuer and Reclaimer

Hubert Costello and others (next-of-kin of Ethel Frances Costello)

Defenders and Respondents

Minor Defenders and Respondents and their Curator ad litem

Defenders and Respondents

Procedural Posture

Civil (succession/testamentary) / Inner House, Second Division, Reclaiming Motion (appeal)

Legal Issues

  1. 1 Whether an unsubscribed holograph document can constitute a valid will under Scots law
  2. 2 Whether extrinsic (parole) evidence can supply the want of subscription in a holograph will

Ratio Decidendi

The Court held that under Scots law, subscription is an inflexible requirement for the validity of a holograph will; the absence of subscription cannot be remedied by extrinsic or parole evidence, regardless of the testator's intentions or surrounding circumstances. The document in question, though holograph and intended as a will, was not subscribed and therefore could not receive effect as a valid testamentary settlement.

Court Disposition

action dismissed

Orders

  • The interlocutor reclaimed against is recalled.
  • The action is dismissed.