Saturday, July 07, 2012

Court of Session rules mother FORGED dead son’s will to steal house as handwriting experts back ex-partner’s challenge

A MOTHER who FORGED the will of her dead son will not inherit his house, after Judge John Beckett QC at Scotland’s Court of Session said he was satisfied Steven Nicol did not sign the disputed will in a challenge brought b by the dead man’s partner on behalf of their daughter. The judge went onto say it was “more likely than not” that his mother Maureen had forged it, after handwriting experts analysed the handwriting and said it was more probably written by his mother. The Judge also also awarded expenses to Mr Nicol’s former partner against the mother, who appeared as a party litigant.

The Daily Record reports : 

Judge blasts woman who forged will in attempt to snatch dead son's home

Jul 7 2012 By Dave Finlay

A WOMAN won’t inherit the house she lives in from her son after a judge ruled that the will was faked.

John Beckett QC said he was satisfied that Steven Nicol did not sign the document and it was “more likely than not” that his mother Maureen forged it.

Former taxi driver Steven, from South Queensferry, died in a road accident in March 2008.

His mother produced a will signed “Steven James Nicol” which bequeathed the house in New Holygate, Broxburn, West Lothian, to her.

But Steven’s former partner Sharon McGeever asked the Court of Session to set the will aside on behalf of her daughter Sophie, 16, Steven’s only child and sole heir.

Sharon had lived with Steven from 1992 until they separated in 2005.

She said he bought the house in Broxburn in 1994 and she was not aware of him making a will. Sharon told the court Steven usually signed himself “S Nicol” and would never use his middle name.

Handwriting expert John McCrae compared specimen signatures and was 99.99 per cent sure that those on the will were not genuine.

He told the court it was highly probable that they were written by Steven’s mum.

Nicol, 60, maintained Steven bought the house for her and it was understood that she would pay the £42,500 mortgage.

She claimed the will was genuine and that her close relationship with her son had been kept from Sharon.

But the judge said although Nicol plainly felt she was morally entitled to the house, he was persuaded that the will was a forgery and should be set aside.

Court of Session’s full opinion :

OUTER HOUSE, COURT OF SESSION [2012] CSOH 115 A768/09 OPINION OF J BECKETT QC (Sitting as a Temporary Judge) in the cause SHARON McGEEVER(AP) as legal representative of her daughter Sophie Nicol Pursuer; against MAUREEN NICOL Defender:

Pursuer: McConnell, Beveridge & Kellas
Defender: Party

6 July 2012

[1] I heard the proof before answer in this action in which the pursuer seeks production and reduction of a purported will of the late Steven James Nicol dated 2 May 1995 and interdict against the defender taking certain steps in relation to his estate. The pursuer brings the case as legal representative of her daughter Sophie Nicol who is the daughter of Steven James Nicol who died on 1 March 2008 in a road traffic accident. The defender is Mr Nicol's mother. Interim interdict was granted on 3 November 2009. In the course of proceedings, the purported will was produced by the defender.

[2] The purported will (the will), no. 6/7 of process, narrates that the address of the testator, Steven James Nicol, was 48 New Holygate, Broxburn. It bears to appoint the defender and a Mr Malcolm, Solicitor as executors. It bears to have been prepared by Connor Malcolm, Solicitors, Edinburgh. In its fifth clause, the dwellinghouse at 48 New Holygate, Broxburn is bequeathed to the defender. In its sixth clause, the residue of the estate is bequeathed equally amongst the defender and any children of the testator who survive him. The document bears to be signed 'Steven James Nicol' at the foot of page 1, and to be signed 'Steven James Nicol' and witnessed by two witnesses on page 2.

Procedural matters

[3] At the start of the hearing, the defender, who represented herself, invited me to discharge the proof to allow her more time to seek legal representation as legal aid had been refused. Mr McConnell, for the pursuer, explained that this motion would be opposed. The defender explained that she did not have legal aid and would not be in a position to fund representation herself. She explained that she felt that she had a right to be represented and the case was important to her given that it related to a house which, so far as she is concerned, she owns. She was hopeful that if the proof were discharged, she might be successful in obtaining legal aid. When asked what she had done about securing representation since May 2011 when legal aid was refused and her agents withdrew from acting, she said that she had left some papers with BCKM a firm of solicitors specialising in criminal defence work in Edinburgh. After some months, about a month ago, a secretary of the firm had said that they could not act for her in this matter. She had spoken to a Mr Whitten, Solicitor in Broxburn and he could not act for her. A solicitor in Gorgie Road in Edinburgh had not been very helpful. If the proof were discharged she had in mind to go to see solicitors in Livingston. There was a court lawyer who had acted for her last year who she liked and she would see if she could find him although she did not know his name or which firm he worked for. If that did not work out she would try to instruct Caesar and Howie, Solicitors. The pursuer then exhibited a letter dated 14 May 2012 from a Dr Claire Glancy of the Ferguson Medical Practice, Broxburn, not on soul and conscience, which narrated with reference to the defender,

"I can confirm that the above patient has been suffering from anxiety and depression following the death of her son and this has been exacerbated by additional stresses recently including the threatened loss of her home."

[4] The motion to discharge the diet of proof was opposed by the pursuer who explained that agents formerly acting for the defender had withdrawn from acting on 9 May 2011 because legal aid had not been granted. On 19 May 2011 the pursuer was ordained to indicate if she insisted on her defences. On 12 October 2011, when the pursuer was personally present, a proof before answer was fixed. Mr McConnell pointed out that a year had passed since legal aid was refused and seven months had passed since the proof diet had been fixed. Agents for the pursuer had written to the defender on 16 March 2012 advising the defender to seek legal advice if in any doubt as to her position, advising her of the deadline for lodging productions and lists of witnesses, that witnesses would be led at the proof, and enclosing a copy of Rule of Court 36.2 setting out what a party litigant would require to do to cite witnesses. The letter also enclosed a copy of the Record and a copy of no. 6/9 of process, the first report by John McCrae, document examiner and handwriting expert. The defender confirmed that she had received that letter. Mr McConnell submitted that the pursuer had had ample time in which to arrange representation if she was ever going to do so, the case was not complex in law and involved fairly simple issues of fact about which the defender could give evidence. Witnesses were cited for the pursuer and ready to give evidence. The case was a very anxious one for the pursuer's daughter who was presently sitting her Standard Grade examinations and had found that the case had weighed heavily on her over a long period and was anxious to have it concluded. He suggested that even if the case was adjourned, there seemed to be little likelihood that the defender would be represented. The pursuer had done all that was reasonable to assist the defender and it was in the interests of justice that the proof should proceed.

[5] I raised with Mr McConnell the possibility that Mary Thomson might be an important witness for the defender, albeit she had not been listed as a witness by the defender. Ms Thomson bears to be a witness to the signing of the will and she had provided an affidavit for the defender, no. 7/1 of process, confirming that she had done so and that the will truly was signed by the late Mr Nicol. Mr McConnell explained that Ms Thomson was listed as a witness for the pursuer and his agents had intended to cite her as a witness with a view to discrediting her affidavit, something which Mr McConnell said that he was very confident that he could do. Ms Thomson had told his agents that she would not come to court and that she would sooner go to prison than come to court. Ms Thomson had also exhibited a doctor's letter to his agents suggesting that she would not be fit to come to court. Mr McConnell submitted that there was little likelihood that that witness would give evidence for the defender in these circumstances.

[6] I considered the matter carefully, being aware of the importance to the defender of the outcome of this case. So far as the doctor's letter was concerned, I was aware from the pleadings that the defender's son had died in 2008 and that the proceedings had been before the court since late 2009. These sources of stress were not new and would always be present for the defender in this case. I noted that despite her having had notice of the first report by Mr McCrae for at least two months, the pursuer did not suggest that she wished to seek the assistance of a handwriting expert of her own. Having regard to the whole circumstances, including the history of the proceedings, which had been before the court since November 2009, and the fact that despite legal aid having been refused a year previously representation had still not been arranged, I formed the view that it was very unlikely that representation would be secured if I discharged the proof. On the other hand, there would be prejudice to the pursuer if the proof were discharged. I had been told, and could understand, that the case was a very anxious one for the pursuer's daughter who was sitting her Standard Grade examinations and had found that the case had weighed heavily on her over a long period and was anxious to have it concluded. Witnesses who were present and ready to give evidence would be inconvenienced by having to return to court, most probably with nothing having changed. I concluded that it was in the interests of justice that the proof should proceed, subject to my intention of raising with the defender at a later stage whether she sought an adjournment to adduce any particular evidence.

[7] Mr McConnell sought to introduce late lists of productions in the form of inventories five, six and seven and a supplementary list of witnesses. The fifth inventory included a second report from John McCrae, dated 26 April 2012, which had been intimated to the defender on 30 April 2012, no. 6/20 of process. The sixth inventory included nos. 6/21-6/30 of process which largely included certified copies, and in some cases originals, of copy documents which were already in process. The seventh inventory included a letter which proved to have no relevance in the proof, and a document bearing the signature of Steven Nicol which had come to light recently, nos. 6/31 and 6/32 of process. A further list of witnesses contained witnesses to speak to some of the productions which were lodged as containing specimen signatures. The defender opposed the late lodging on the basis that she was not represented and she suggested that she would need time to prepare her cross-examination of Mr McCrae. I allowed the productions to be received being satisfied that cause was shown. Mr McCrae's report had only been completed recently and most of the other productions were formal in nature, and some related to his report. Whilst the report of Mr McCrae was significant, the pursuer had known of it for some time and she had not suggested that she wished to find her own expert. I concluded that I would allow her time to prepare her cross-examination after Mr McCrae had given evidence in chief and would consider any further motion she may make at a later stage.

[8] At the start of her evidence, the defender produced a bundle of documents. She explained that the purpose of her having these documents, mainly letters, was to show that she had lived at 48 New Holygate for a long time. There was no objection to these documents being received late and they became no. 7/2 of process.

Evidence for the pursuer

[9] Sharon McGeever, the pursuer, said that she began a relationship with Steven Nicol in 1992 and that later that year they started to live together. From around 1994, they were trying to have a baby and she suffered two miscarriages before their child Sophie Nicol was born on 10 May 1996. The pursuer continued to live with Steven Nicol until they separated in 2005. Mr Nicol died on 1 March 2008.

[10] Mr Nicol bought the house at 48 New Holygate, Broxburn, West Lothian in 1994. The pursuer had discussed the purchase with him and had chosen the house with him. Mr Nicol was contemplating that he might become involved in the property business and was intending to redecorate the property and to rent it out. In the event however, his mother, the defender, began to live there in 1994. The pursuer understood that in return for being allowed to live there, the defender would meet the cost of the mortgage payments. At no time had Mr Nicol said that he had bought the property for his mother.

[11] So far as the pursuer knew, the defender had separated from Mr Nicol's father when Mr Nicol was aged 12 and Mr Nicol had thereafter been brought up by his father and grandparents with whom he lived. He had told her that he did sometimes see his mother and he did not 'badmouth' her. He did however say that they did not have a normal mother and son relationship, which she took to mean that their contact was not frequent and her impression was that Mr Nicol was not close to the defender.

[12] The pursuer was not aware that Mr Nicol had ever made a will. She had been close to him, they discussed all important decisions and she would have known if he had decided to make a will. She would have been very surprised if he had chosen to make a will leaving an asset to someone other than the child that they were planning to have in 1995. She was very surprised when she saw a copy of the will. Mr Nicol had never mentioned to her that he was making a will, he would have been a young man in 1995 and she did not believe that he would have made a will in the terms of no. 6/7 of process.

[13] The pursuer had frequently seen Mr Nicol sign his name and indeed she would often complete forms for him, leaving him to enter his signature which he would do in front of her. She was able to identify his signature on a number of documents. Pages 4 and 5, and 7 and 8, of no. 6/27 of process comprised applications for a taxi driver license which she had completed and which Mr Nicol had signed in her presence on 20 February 1998 and 9 September 1996 respectively. She could remember him doing so. She had not seen him sign at page 2, but she recognised his signature. She recognised Mr Nicol's signature on the copy driving licence, within no. 6/27 of process and she confirmed that he had lived with her at the address shown on that document, 71 South Scotstoun, South Queensferry. She was able to identify Mr Nicol's signature on no. 6/22 of process, standard security dated September 2005 over 4 Echline Place South Queensferry where she knew that Mr Nicol had moved at that time, and on no. 6/23 of process, standard security from April 1994 in respect of 48 New Holygate, Broxburn. She was able to identify Mr Nicol's signature on a number of other documents including no. 6/10 of process, a copy tenancy agreement dated 10 April 1995 and on the original, no. 6/28 of process; nos. 6/14 and 6/15 of process, Halifax Bank documents with dates in 2007 and 2005 respectively; and the signature on page 4 of no. 6/29 of process, a hire purchase agreement made in 2007 which was in due course spoken to by Lindsay Lees.

[14] The pursuer explained that Mr Nicol would always use his initial and sign 'S Nicol' and would not sign with the name Steven unless he was asked to do so. He would never use his middle name James in a signature. On being shown the signatures on the will, she said that these were not Mr Nicol's signatures, they were forgeries.

[15] At the end of the pursuer's examination in chief I explained the purpose of cross-examination to the defender. She declined to cross-examine, explaining that she did not wish to speak to the pursuer.

[16] John McGeever explained that he is the father of the pursuer and that he had got to know Steven Nicol when he employed Mr Nicol as a night shift taxi driver in the early 1990s. They got on well and went on holidays together. They were quite close and at one time had planned that Mr Nicol would take over Mr McGeever's taxi business when Mr McGeever turned 60. They had planned to get involved in the property business together but he did not know at the time that Mr Nicol had bought 48 New Holygate, Broxburn. He felt sure that if Mr Nicol had chosen to make a will he would have used solicitors to do so because when he had leased shop premises from which he ran a sunbed business, Mr Nicol had used a solicitor to draw up a formal lease. In cross-examination Mr McGeever said that he understood that the pursuer had ended her relationship with Mr Nicol because Mr Nicol had been having an affair with a woman named Heidi.

[17] Martin Lenny had been a friend of Mr Nicol from 1998 until his death. His impression was that Mr Nicol had not been close to his mother and he knew that Mr Nicol had been brought up by his grandparents. He was aware that the defender lived in a house in Broxburn, which Mr Nicol referred to as his house, although Mr Lenny did not know who owned it. Mr Nicol had never said that the house was to be given to his mother. Mr Nicol had a good relationship with the pursuer and was close to his daughter and he felt sure that Mr Nicol would have intended that she would be looked after in the event of his death. His impression was that Mr Nicol had enjoyed a closer relationship with his daughter than with his mother. In cross-examination he explained that after Mr Nicol and the pursuer separated, Mr Nicol mentioned that it was because he had been involved with a woman called Heidi.

[18] Jacqueline Clerk who works in the licensing department of Edinburgh City Council spoke to nos. 6/27 and 6/32 of process which she had made available. Carol Cowe was a manager for Millar and Bryce and her job was to create quick copies of title deeds from the Register of Sasines and she confirmed that she had produced nos. 6/25 and 6/26 of process. No. 6/25 was a quick copy disposition which had been signed 'Maureen Nicol' on 6 February 1998 and 6/26 comprised a quick copy standard security and schedule which had each been signed on 5 August 1987 'M Nicol.'

[19] John McCrae is a document examiner and handwriting expert with 35 years experience including 17 years spent with the Identification Bureau of Strathclyde Police. He had prepared a report dated 27 July 2010, no. 6/9 of process. He had examined specimen signatures of Mr Nicol and compared them with signatures in the name 'Steven James Nicol' on the will. In a second report, dated 26 April 2012, lodged as both 6/20 and 6/30 of process, he had compared the signatures 'Steven James Nicol' on the will with specimen signatures of the defender. He spoke to both of his reports, both of which begin by narrating his extensive experience in document and handwriting examination. His expertise was not challenged and I was satisfied that he was qualified to give the opinion evidence which he gave.

[20] At the outset of his evidence he gave a general introduction to the features which can be used to analyse handwriting and he explained his ability to discern features relating to speed, fluency, slope, spacing, relationship to an imaginary baseline, letter construction, connections, line quality and proportion.

[21] Referring to his first report, he explained that modern photocopying tends to be of such good quality that his examinations and comparisons can be made using photocopies almost as well as they could be made by studying original documents.

[22] Mr McCrae had set out in his report the documents, or copies, on which he had examined specimen signatures of Mr Nicol. He had reproduced four of these in his first report for illustrative purposes numbered S1-S3, and S10: S1 was no. 6/5 of process, and no. 6/22 of process was a certified copy; S2 was no. 6/10 of process; S3 was no. 6/11 of process, the original of which was produced in no. 6/27 of process at page 5; S10 was another copy of the original document which forms no. 6/32 of process. He identified all of those documents which he had numbered S1-S11 in his report. He was satisfied to the highest level of probability that the specimen signatures of Mr Nicol which he had examined, all signed 'S Nicol,' were of common authorship. The two signatures 'Steven James Nicol' on the will were not made at the same time in his judgment.

[23] When he compared the specimen signatures of Mr Nicol with the two 'Steven James Nicol' signatures on the will, he found no similarity in letter construction, speed or fluency. The questioned signatures were suggestive of very slow speed compared to the high speed of the specimen signatures. Slow speed suggests hesitation and particular care being taken by the writer. He had concluded that it was highly probable that the questioned signatures 'Steven James Nicol' on the will are not genuine signatures written by Mr Nicol. His report explains that 'highly probable' indicates that the possibility of the questioned signatures being genuine is extremely remote. In evidence, he said that he was confident beyond reasonable doubt that the signatures were not genuine, he was 99.99% sure of that, he was as confident as he could be. 'Highly probable' meant virtually positive.

[24] Mr McCrae then spoke to his second report, no. 6/20 of process. He had found several sources of similarity between the questioned signatures on the will and the specimens of the defender's signature, which he had examined on nos. 6/17 and 6/18 of process, which were essentially duplicates of nos. 6/25 and 6/26 of process. It would be very unusual to find so many features in common if there was not a common author. In his report he had concluded that it was highly probable that the questioned signatures 'Steven James Nicol' on the will and the specimen signatures relating to the defender were of common authorship, which indicates that it is extremely unlikely that any other person was responsible. When asked if he was 99.99% sure of this, he replied that he held this opinion to a level of confidence which was high as he could go on probability.

[25] The defender was offered an adjournment overnight to prepare her cross-examination which opportunity she declined. She did not cross-examine Mr McCrae.

[26] Graham Allan spoke to no. 6/31 of process, a letter from West Lothian Council dated 9 September 2011 the terms of which confirmed that after Mr Nicol had died, the Council Tax account for 48 New Holygate, Broxburn was transferred to the defender. Whilst the account had previously been in the name of Steven James Nicol, that did not necessarily mean that he had made the payments for the account and it was not possible to say, from the information held by the council, who had lived in the property before the Council Tax account was transferred to the defender.

Evidence of the defender

[27] The defender, Maureen Nicol, gave evidence. She is now aged 60 and retired but had been in business when she was younger. She continues to reside at 48 New Holygate which she said had been bought by her son Steven for her. It was understood between them that she would pay the mortgage and the terms of the will reflected his genuine intention that he would leave the house to her. She referred to a number of the documents in no. 7/2 of process to support her evidence that she had been living there over a long period.

[28] It was she, the defender, who had found the house at number 48 New Holygate. A financial adviser named Douglas Stuart, who is now deceased, had arranged the finance. Steven was able to get a 100% mortgage and she and Steven had agreed to take advantage of this facility and the loan was taken in Steven's name. It was the defender who paid the monthly repayments, usually in cash at the Bank of Scotland in Bathgate. The loan was for £42,500 which was the purchase price of the house. The payment was about £200 per month with an additional £72 for insurance to cover the loan.

[29] She and Steven had remained close and he had telephoned her to wish her a happy new year at the beginning of 2008. The closeness of their relationship had been kept from the pursuer. The defender's position was that the relationship between Steven and the pursuer had not always been a happy one and she had caused problems between Steven and his cousin James. The defender made a number of derogatory remarks about the character and motives of the pursuer. In particular, she said that she thought that the pursuer had somehow persuaded or tricked the defender's husband, Thomas Nicol, to leave his house at 71 South Scotstoun, South Queensferry to the pursuer when he died. She does not like the pursuer to the extent that she said that she might assault her in certain circumstances.

[30] The will was genuine and it had been drawn up by Connor Malcolm, Solicitors who had kept it until Steven had died. The will reflected her son's wishes which he had discussed with her. She recognised her son's signatures on it as his genuine signatures. She did not write those signatures herself.

[31] She said that when the will had been signed, those present had been Mary Thomson, Helen McKay, Steven Nicol and the defender herself. She said that Steven, Mary Thomson and Helen McKay had signed the will and she, the defender, had also done so. On looking at no. 6/7 of process, she said that she did not in fact see her signature, but she remembered that she had been present when the will was signed by Steven.

[32] In cross-examination, the defender confirmed that the signatures in the name of Maureen Nicol or M. Nicol on nos. 6/25 and no. 6/26 of process were her own signatures. She confirmed that the various signatures 'S Nicol' in no. 6/27 of process were genuine signatures of her son Steven Nicol, but she observed that there was variation amongst them.

[33] When she was asked in cross examination about the evidence given by Mr McCrae she said at one stage that she would need to agree to differ from him, and at another that it was her position that since he had not said that he was 100% sure, and had only accepted that he was 99% sure, he could be wrong.

[34] At one stage in her cross-examination she disputed that Sophie is truly the daughter of her son, which represented a departure from the admission to that effect which she had made in her pleadings.

[35] It was pointed out to her that the will bore to give the address of 48 New Holygate as Steven's address and she agreed that he had never lived there. She agreed that the will contained typing errors in the word 'yo' which should have been 'to' in clause 5 and the word 'beqeath' which should have been 'bequeath' in clause 6, and that the designation of Mary Thomson was typed as 'receptionise' instead of 'receptionist.'

[36] Mr McConnell referred the defender to one of the productions in no. 7/2 of process, a letter from Connor Malcolm, Solicitors addressed to Steven Nicol at 48 New Holy Gate, Broxburn and dated 14 May 1999. The letter was in the reference 'RP' and was subscribed in typescript with the words 'Rachel Pyne, Client Services Manager' which had been signed 'pp L Whalen'. The letter begins by suggesting that Mr Nicol might wish to consider re-mortgaging on a more advantageous basis, but it was a passage on the second page of the letter, in the following terms, that the defender was asked about:

''I note from your file that we do not hold a Will for you and I would suggest that it might be sensible for you to consider the making of a Will as it can save time trouble and expense in the future as well as regulating your wishes for your estate. I am therefore enclosing a will information form and if you wish to take advantage of this service please complete the forms at your earliest convenience."

The defender acknowledged that the letter was in these terms and did not dispute that it was sent by Connor Malcolm, Solicitors, but she suggested that it had been sent out in error by them because it was that firm which had drawn up the will.

[37] The defender made reference to the affidavit of Mary Thomson, no. 7/1 of process. That document was lodged and was prepared by Drummond Miller, Solicitors, the agents formerly acting for the defender. It is dated 28 February 2011. In her affidavit Ms Thomson states that on 2 May 1995, she was a receptionist with a firm (unspecified) in Edinburgh. She states that she was in the company of Maureen Nicol, Helen McLeish McKay and Steven Nicol. Ms McKay is now deceased. She states that 'we were asked if we would be witnesses to Steven's will.' She does not specify by whom she was asked or where the signing took place. She states that Mr Nicol signed his will in her presence and she and Ms McKay then signed. It was later noticed that Mr Nicol had omitted to sign at page 1 so he then did so, on the same day. She witnessed him signing both times.

[38] I asked the defender at this stage if she wished an adjournment to try to secure the attendance of Ms Thomson as a witness, or to call any other witness, and she said that she did not.

Submissions for the pursuer

[39] Mr McConnell submitted, with reference to Walker, The Law of Civil Remedies in Scotland, 1974, at page 151, that it was self evident that if the signatures of Steven Nicol had been forged, the document was a nullity and the will should be reduced.

[40] Mr McConnell submitted that I should find the witnesses called for the pursuer to be straightforward, credible and reliable. On the basis of the evidence he had led, I should conclude that the defender had lied when she had denied forging the will. Although the defender had made reference to the affidavit of Mary Thomson, it was not subject of agreement and its making had not been proved by a witness and the court should ignore it as being of no evidential significance.

[41] Mr McConnell made five particular submissions. First, there was a lack of any similarity between genuine signatures of Steven Nicol and those on the will, and even the words used were different. Secondly, Mr McCrae expressed a very high level of confidence, 99.99%, that the signatures were not genuine. Thirdly, Mr McCrae had given evidence of similarities between the defender's signature and the 'Steven James Nicol' signature on the will. Fourthly, the pursuer was certain that the signatures on the will were not genuine. Fifthly, the evidence of the pursuer and Mr McCrae had not been challenged in cross-examination.

[42] In addition, Mr McConnell founded on circumstantial evidence which, he submitted, tended to support the conclusion that the will was not genuine: the fact that Mr Nicol had never told the pursuer that he was making a will given that in 1995 he and the pursuer were trying to start a family; the terms of the will would be strange given the preponderance of the evidence that Mr Nicol had a stronger relationship with his daughter than with his mother; the document contained a number of typographical errors and an error relating to Mr Nicol's address which tended to confirm that it was not genuine; the letter from Connor Malcolm dated 14 May 1999 which the defender had produced amongst no. 7/2 of process confirmed that in 1999 they did not hold a will for Mr Nicol which tended to contradict the suggestion that they had prepared one in 1995 and this also contradicted the defender's evidence that they had kept custody of the will until Mr Nicol's death in 2008.

[43] If the court were to find that the will should be reduced then it ought to follow that interdict should be granted as sought, because the defender had tried to place reliance on a forged will and had exhibited hostility to the pursuer. However, the court should accept that it was the defender herself who had forged the will and if it did so, then it was even more clearly appropriate that the court should interdict the defender in perpetuity from attempting to confirm to the estate or from interfering with it in anyway. If the will were to be reduced, the defender would not be entitled to seek confirmation and the situation would be one of intestacy. In that situation, the defender should not be entitled to apply to be an executor of the estate.

[44] Mr McConnell submitted that expenses should follow success and so the outcome of the case would properly determine that question, and he moved that the pursuer should be awarded expenses in the event of success.

Submissions for the defender

[45] The defender reiterated her views about the pursuer and said that she was a liar whose evidence should not be accepted, although her specific criticisms of her evidence seemed primarily to relate to how good the pursuer's relationship with Mr Nicol had been. The pursuer had lied when she said that she had chosen the house with Mr Nicol. The letter from Connor Malcolm was obviously a letter sent out to drum up business and had been sent out by mistake and no significance should be attached to it. It was that firm which had passed the will to her when her son died. Mr McCrae had been talking mainly in generalities only. The will was genuine and the defender had not been involved in creating it.

[46] The defender thought that since the pursuer had already inherited the house at 71 South Scotstoun, South Queensferry, it was unfair that the defender should be deprived of 48 New Holygate which properly belonged to the defender.

[47] On the question of expenses, the defender submitted that she should not have to pay any expenses because that would not be fair, the whole matter had adversely affected her health.

Conclusions on the evidence

[48] I have considered all of the evidence in the case and all of the submissions made about it. I have considered the criticisms made of the pursuer in the evidence of the defender, but they do not detract from the impression which I formed when she gave her evidence that Ms McGeever was a straightforward witness who was trying to tell the truth and whose evidence I could rely on. She did not appear to me to exaggerate or to go beyond what she could reasonably say. She did not appear to me to be motivated by self interest, rather she had brought the action on behalf of her daughter. Her evidence that the specimen signatures 'S Nicol' which she was shown were those of her former partner, was supported by Mr McCrae and indeed the defender herself. I accept the factual evidence of Sharon McGeever and accept that the opinions which she expressed were genuinely held.

[49] From the evidence of the pursuer, the defender and John McCrae, I am entirely satisfied that the specimen signatures which were adduced in evidence bearing the signature 'S Nicol', were true signatures of Steven James Nicol.

[50] From her own evidence, and having regard to the contents of the documents, I am entirely satisfied that the specimen signatures 'M Nicol' and 'Maureen Nicol' are true signatures of the defender.

[51] The affidavit of Mary Thomson, having been lodged, did not require to be spoken to by a witness. However, the assessment of the weight to be given to evidence coming in that form, sworn though it was, was for me to make. I did not have the opportunity of seeing Ms Thomson give evidence and be subjected to cross-examination. If its contents were true, the terms of the affidavit would fatally undermine the pursuer's case. However, given the body of evidence arrayed in favour of the pursuer, I do not accept that the affidavit contains the truth.

[52] Whilst the defender gave evidence on oath denying that she was involved in creating and signing no. 6/7 of process, there is a formidable body of evidence which infers that she was. The defender plainly feels very strongly that she is morally entitled to the ownership of the house at 48 New Holygate, but I do not accept her evidence about the will. Whilst she was very passionate in giving her views about what she saw as her moral entitlement to ownership of the house at 48 New Holygate, she exhibited less conviction when denying that she had been involved in forging the will. I do not accept her evidence that the signatures on the will were written by her son and I do not accept her denial of having written the signature 'Steven James Nicol.' She has a clear motive to support the will being genuine, and her evidence appeared to me to be designed to serve that purpose. Her evidence is contradicted by evidence coming from a variety of sources which I accept.

[53] The evidence given by John McCrae was persuasive and was not challenged by cross-examination. It is supported in part by the evidence of the pursuer, who was familiar with Mr Nicol's signature, that the signatures on the will were not made by him. It is also supported by the terms of a letter produced by the defender which strongly suggests that Connor Malcolm, Solicitors did not draw up no. 6/7 of process as the defender maintains that they did. On the basis of that body of evidence, which I found to be strong and compelling, I have little difficulty in being satisfied that Steven Nicol did not sign the document which is no. 6/7 of process.

[54] Having regard to the terms of the will, and the evidence of John McCrae, and reinforced to some extent by the Connor Malcolm letter, and the surrounding facts and circumstances including the compelling fact that the address given for Mr Nicol on the will was not where he was living at the time it was signed but the address of the defender at that time, I have little difficulty in being satisfied that it is more likely than not that it was the defender who wrote the signatures 'Steven James Nicol' on the will which purport to be those of the late Steven Nicol.

[55] Having reached these conclusions I infer that the will was not prepared by Connor Malcolm, Solicitors on the instructions of Steven Nicol. It was not created by or at the instigation of Steven Nicol. I infer that the will was created by the defender.


[56] Having reached those conclusions on the evidence, I am persuaded that the will is a forgery and should be reduced. It seemed to me that Mr McConnell's argument that in these circumstances interdict should be granted in the terms sought was well founded.
[57] For the foregoing reasons, I sustain the pleas in law for the pursuer and repel the pleas in law for the defender. I shall reduce the purported will of the late Steven James Nicol dated 2 May 1995. I shall grant interdict as concluded for and interdict the defender Maureen Nicol, 48 New Holygate, Broxburn, West Lothian from:

i) confirming or seeking to confirm to the estate of the late Steven James Nicol, or from instructing any other person to seek her confirmation on her behalf;

ii) assuming or seeking to assume any person as Executor on the estate of the late Steven James Nicol; and

iii) from intromitting or seeking to intromit or instructing any other person to intromit with the estate of the late Steven James Nicol.


[58] The pursuer having achieved complete success in the action, I see no justification for departing from the normal course of awarding expenses to the successful party. The pursuer is awarded the expenses of the action.


Anonymous said...

Sounds like a report to the Procurator fiscal for perjury is deserved, and has been hard earned.

Anonymous said...