Ferguson v. London Missionary Society and Others [1918] ScotLR 57 (19 November 1918)

Ferguson v. London Missionary Society and Others [1918] ScotLR 57 (19 November 1918)

The Court held that, given the lack of direct authority and the factual uncertainties, it was appropriate to allow proof before answer of the pursuer's averments regarding the testator's intention and the circumstances of the destruction and custody of the wills. The Court adhered to the Lord Ordinary's interlocutor permitting such proof.

Citation
[1918] ScotLR 57
Parties
Pursuer: Mrs Mary Anne Russell or Ferguson; Defender: James Lyon Guild and another (trustees under 1878/1883 will); Defender: London Missionary Society and others (beneficiaries under 1878/1883 will); Defender: Henry Hay and another (representatives of universal legatee under 1885 will)
Jurisdiction
Scotland
Judgment Date
19 November 1918
Procedural Posture
Succession/testamentary Action / Interlocutory Appeal (reclaiming Motion) Against Allowance of Proof Before Answer
Outcome
Interlocutor of Lord Ordinary adhered to; proof before answer allowed of parties' averments.
Legal Topics
Revocation of Wills, Competency of Extrinsic Evidence, Intestacy, Reduction of Testamentary Deeds
Succession Law Testamentary Law Revocation of Wills Competency of Extrinsic Evidence Intestacy Reduction of Testamentary Deeds

Case Brief

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Parties

Mrs Mary Anne Russell or Ferguson

Pursuer

James Lyon Guild and another (trustees under 1878/1883 will)

Defender

London Missionary Society and others (beneficiaries under 1878/1883 will)

Defender

Henry Hay and another (representatives of universal legatee under 1885 will)

Defender

Procedural Posture

Succession/testamentary Action / Interlocutory Appeal (reclaiming Motion) Against Allowance of Proof Before Answer

Legal Issues

  1. 1 Whether a prior will (1878) revoked by a later will (1885) is revived when the later will is destroyed animo revocandi and not found at death
  2. 2 Whether extrinsic evidence is admissible to show the testator's intention regarding revocation and destruction of testamentary writings

Ratio Decidendi

The Court held that, given the lack of direct authority and the factual uncertainties, it was appropriate to allow proof before answer of the pursuer's averments regarding the testator's intention and the circumstances of the destruction and custody of the wills. The Court adhered to the Lord Ordinary's interlocutor permitting such proof.

Court Disposition

Interlocutor of Lord Ordinary adhered to; proof before answer allowed of parties' averments.

Orders

  • Proof before answer allowed of the averments of both parties, habili modo, and to the pursuer a conjunct probation.