Scottish Court of Session Decisions

The Writs Registration (Scotland) Act 1868 (31 and 32 Vict. cap. 34), sec. 1, enacts as follows:—“From and after the passing of this Act no writ that shall have been given in to be registered in the Books of Council and Session shall be taken out by the party or anyone employed by him, nor shall any such writ be given up by the Keepers of the Register for any purpose at any time, either before or after the same has been booked, excepting only when authority of the Lords of Council and Session has been expressly given thereto, and then only under such conditions and limitations as may be expressed in such authority, anything in the said recited Act” (an Act of the first Parliament of His Majesty King James the Seventh, held at Edinburgh in the year 1685, intituled ‘Act concerning the Registration of Writs in the Books of Session’) or in any other Act, or any law or custom to the contrary not withstanding.”

On February 20, 1904, Mrs Jane Hunter or Macdonald, 41 Bath Street, Portobello, widow of the late John Duncan Macdonald, M.D., executed a trust-disposition and settlement, whereby she conveyed her whole estate to Robert Murray, Calside Villa, Paisley, as trustee and sole executor. The trustee was directed to pay certain legacies and pay the residue of the estate to the grand-daughter of the testatrix.

The trust-disposition was framed by the law-agent of the testatrix in accordance with instructions given to him by the testatrix personally, and was extended by a clerk in his employment. The will was read over to the testatrix by the law-agent, who fully explained its effect to her, and was signed by her in presence of the said law-agent and clerk. In view of the weak state of the testatrix's health, the law-agent thought it inadvisable that he and the clerk should remain longer in her room than he could help, and they accordingly left the room after the testatrix had signed, before either had adhibited their names as witnesses. The testing clause of the will was subsequently duly filled in by the clerk—the law-agent and clerk being named therein as witnesses. The will was thereafter placed in a safe in the office of the law-agent without its being noticed that the witnesses had not adhibited their signatures.

On April 20th 1904 the testatrix died.

On April 22nd 1904 the will was lodged by the clerk of the law-agent with the Keeper of the Register of Deeds, Probative Writs, and Protests for the purpose of being registered in the Books of the Lords of Council and Session, without its being noticed that the witnesses had not adhibited their signatures thereto.

In these circumstances this petition was presented on 14th January 1904 by the said Robert Murray, sole trustee and executor under the will, and by the said law-agent and clerk, setting forth the facts above narrated, and stating further that the said will had been lodged with the Keeper of the Register of Deeds, Probative Writs, and Protests per incuriam without its being noticed that the witnesses had not yet adhibited their signatures thereto; that although lodged with said Keeper the said will had not been recorded in the Books of the said Register; that only one extract of said will had been issued, and that to the petitioners; that after receipt of the said extract the omission aforesaid was observed; and that the said extract had not yet been produced or founded on in any Court, and, save as set forth in the petition, no procedure of any kind had followed on said will.

The petitioners referred to the Writs Registration (Scotland) Act 1868 (31 and 32 Vict. cap. 34), sec. 1, quoted supra, and stated that they were willing to return to the Keeper of the said Register the extract which they had received, and that they desired access to the principal will in order that the said law-agent and clerk, the witnesses present at the execution thereof, might add their signatures as such witnesses.

The prayer of the petition craved the Court “to grant warrant for serving the same on the Deputy Clerk Register and on the Keeper of the Register of Deeds, Probative Writs, and Protests, General Register House, Edinburgh; to allow them to lodge answers thereto, if so advised, within eight days after service; and thereafter, on resuming consideration hereof, with or without answers, to grant warrant to and authorise and appoint the said Keeper of the said Register of Deeds, Probative Writs, and Protests, on production to him of a certified copy of the deliverance to follow hereon, and on his receiving back from the petitioners the extract of the deed after mentioned, already issued to them, to give the petitioners or their agent access to the trust-disposition and settlement

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… in the hands of the said Keeper, for the purpose of allowing the witnesses to the said trust-disposition and settlement adding their names as witnesses at the sight of the said Keeper, and to appoint a copy of said deliverance to be added to every extract of the said trust-disposition and settlement that shall be issued by the said Keeper, and to be authenticated by the said Keeper as part of the said extracts.

No answers were lodged.

Argued for the petitioners—The trust-disposition had been merely lodged for registration and had not been in fact recorded. Caldwell v. The Lord Clerk Register, November 17, 1871, 10 Macph. 99, 9 S.L.R. 89, furnished a precedent for asking authority to make a correction on a deed after the death of the granter and after it had become part of the public records. A deed might competently be signed by the attesting witnesses after the death of the granter of the deed— Tener's Trustees v. Tickle and Others, June 28, 1879, 6 R. 1111, 16 S.L.R. 672. An appointment by the Court, as craved in the petition, that a copy of the interlocutor of the Court should be added to every extract of the will issued by the Keeper as part of the extract, would prevent the possibility of prejudice to anyone arising from granting the prayer of the petition.

The Court granted the prayer of the petition, and pronounced an interlocutor in the following terms—

“Grant warrant to and authorise and appoint the Keeper of the Register of Deeds, Probative Writs, and Protests, on production of a certified copy of this interlocutor, and on his receiving back from the petitioners the extract of the deed after mentioned already issued to them, to give the petitioners or their agent access to the trust-disposition and settlement mentioned in the petition, viz., a trust-disposition and settlement, executed by the deceased Mrs Jane Hunter or Macdonald, otherwise Mrs Janie Hunter or Macdonald, who resided at No. 41 Bath Street, Portobello, widow of the late John Duncan Macdonald, M.D., on 20th February 1904, in the hands of the said Keeper, for the purpose of allowing the witnesses to the said trust-disposition and settlement adding their names as witnesses at the sight of the said Keeper: Appoint a copy of this interlocutor to be added to every extract of the said trust-disposition and settlement that shall be issued by the said Keeper, and to be authenticated by the said Keeper as part of the said extract and decree.”