Jollie v Lennie [2014] ScotCS CSOH_45 (06 March 2014)

Jollie v Lennie [2014] ScotCS CSOH_45 (06 March 2014)

The court found the evidence of Mrs Reid, who witnessed the will, to be credible and reliable, corroborating the pursuer's account that the November will was subscribed by the deceased on 16 November 2004 and witnessed by Mrs Reid. The court accepted the pursuer's explanation for the damage to the will and found that the pursuer had discharged the onus of proving the tenor and circumstances of the November will. Accordingly, the November will was held to be the deceased's last will and testament.

Citation
[2014] ScotCS CSOH_45
Parties
Pursuer: Lesley Anne Jollie; First Defender: John Asher Lennie; Second Defender: Kirstyn Margaret O'Byrne; Third Defender: Ewan Roderick Wilder Lennie; Fourth Defender: S as mother and guardian of D and N, children of the late Malcolm Alexander Jollie; Fifth Defender: Doreen Sherrat
Jurisdiction
Scotland
Judgment Date
06 March 2014
Procedural Posture
Proof Before Answer (civil Action to Prove Tenor of Will) / Judgment After Proof Before Answer
Outcome
Decree of declarator granted in terms of the first and second conclusions (as amended); further hearing to be held on interdict and expenses.
Legal Topics
Proof of Tenor of Will, Testamentary Writings, Validity of Informal Will, Credibility of Witnesses, Damage to Testamentary Document
Succession Law Probate Wills and Estates Proof of Tenor of Will Testamentary Writings Validity of Informal Will Credibility of Witnesses Damage to Testamentary Document

Case Brief

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Parties

Lesley Anne Jollie

Pursuer

John Asher Lennie

First Defender

Kirstyn Margaret O'Byrne

Second Defender

Ewan Roderick Wilder Lennie

Third Defender

S as mother and guardian of D and N, children of the late Malcolm Alexander Jollie

Fourth Defender

Doreen Sherrat

Fifth Defender

Procedural Posture

Proof Before Answer (civil Action to Prove Tenor of Will) / Judgment After Proof Before Answer

Legal Issues

  1. 1 Whether the November 2004 handwritten will was valid and represented the deceased's last will and testament
  2. 2 Whether the pursuer proved the tenor and circumstances of the November will, including the cause of its damage
  3. 3 Whether the November will was subscribed by the deceased on 16 November 2004 and witnessed by Mrs Reid

Ratio Decidendi

The court found the evidence of Mrs Reid, who witnessed the will, to be credible and reliable, corroborating the pursuer's account that the November will was subscribed by the deceased on 16 November 2004 and witnessed by Mrs Reid. The court accepted the pursuer's explanation for the damage to the will and found that the pursuer had discharged the onus of proving the tenor and circumstances of the November will. Accordingly, the November will was held to be the deceased's last will and testament.

Court Disposition

Decree of declarator granted in terms of the first and second conclusions (as amended); further hearing to be held on interdict and expenses.

Orders

  • Declarator that the November 2004 will is the last will and testament of the deceased as proved in tenor.
  • Further hearing ordered to address the necessity of permanent interdict and the question of expenses.