Scottish Court of Session Decisions

Lord Adam—The question in this case is whether Mr M'Kie's settlement, by which he left the whole of his estate to his wife, was revoked by the birth of a child occurring after its date.

Now, having regard to the doctrines laid down in the case of Elder's Trustees, I think there is a principle that when a child is born, the presumption of law is that its birth renders a previous setlement invalid—a presumption which can only be rebutted by proof of facts and circumstances showing that the intention of the testator was that the will should stand. I think that this is not a very satisfactory position from the point of view of a judge. I could understand that a good principle to adopt would be that of Roman law, viz., that the birth of a child revokes unconditionally a previous settlement. That would seem to have been the opinion of Lord Rutherfurd Clark as given in the case of Dobie's Trustees, but it has not been adopted in the more recent views of the law, and the question accordingly depends on the consideration of facts and circumstances. Now, to draw inferences from facts and circumstances is always a very difficult function to perform. It is like making a new will for a man. The only circumstances referred to here are, in the first place, the lapse of 14 months between the birth of the child and the death of the father, which does not appear to me to be of sufficient importance to rebut the general presumption; and, secondly, the fact that the will was in favour of the mother and not of a stranger, which is certainly of importance, but which is also, in my opinion, not strong enough to rebut the presumption.

Accordingly, in my opinion, we should answer the first question in the affirmative.

Lord M'Laren—It may be that in the opinion of some lawyers the rule with which we are here concerned is not founded on the best consideration of equity, nor really represents the most probable intention of the testator. But the rule has been recognised in our practice for a long time, and we must apply it with the aid of the known expositions of the law. One thing is manifest, that the presumed revocation of a will by the subsequent birth of a child is not an absolute presumption. There may be exceptions to it. I am sorry to say that it is very difficult to find from the authorised expositions of the law what these exceptions are.

The case of Elder is important in this connection, as it settled this point, that the Court will not allow proof of declaration of the deceased as either setting up the will or as fortifying the presumption against the subsistence of the will. For in that case the Lord Ordinary had allowed a proof, but the interlocutor was recalled by the Inner House, and judgment was given upon the known and undisputed facts appearing on the record.

I should hesitate to say that the presumed revocation was a mere question of circumstances. It seems to me impossible to find a solution of the practical questions with which the Courts have to deal under such an indefinite standard. It rather appears to me that the presumption can only be displaced by something that amounts to a tangible and clear expression of the testator's wish that his will should subsist, e.g., by his executing a codicil to it, or by his taking measures of precaution showing that he treated his will as a subsisting document. There is no authority for holding that mere lapse of time is sufficient to overcome the presumption. In the light of principle it is very difficult to see why it should—why, in other words, a document which is dead should be revived by the lapse of time. The effect of lapse of time is to strengthen the counter-presumption which may arise from some indication of the testator's wish, which by itself might be insufficient—for example, if the testator had taken great care to preserve his will, or had made some written reference to it after the lapse of years from the birth of a child. I have been led to consider what kind of evidence is sufficient to overcome the presumption of revocation, because we cannot answer the question raised in the present case without considering the kind of evidence which is admissible to rebut the presumption. There is really nothing in this case which is adverse to the presumption except the survivance of the testator for a relatively short period without making a new will. I agree with Lord Adam that this circumstance is not sufficient of itself.

I have come to this conclusion not without regret, for I cannot help thinking that when the testator made his will his real view was that it should stand until his child, if he should have a child, should reach the years of discretion. I do not think a man in the position of the testator, leaving a wife and a young child surviving him, could make a more reasonable will than was here made, and I cannot help regretting that the presumption must be applied, for I think we are denying effect to a will which really represents the testator's intention.

The Lord President and Lord Kinnear concurred.