Falkirk sheriff rules letter found in deceased’s possessions not a copy of will-altering document

About this case:

• Citation:
  [2025] SC FAL 102
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Christopher M Shead

Pursuer Lois Boyd and defender Lora Boyd were the only children of the deceased Isabel Hughes (or Boyd), whom the pursuer alleged had intended to change her will, dated 24 September 2002, to remove the defender. The defender maintained that there was no evidence that the letter had ever been sent, nor that it was intended to have testamentary effect.

The case was heard by Sheriff Christopher Shead in Falkirk Sheriff Court, with Symon, solicitor, appearing for the pursuer and McColl, solicitor, for the defender.

A meticulous woman

Following the death of the deceased on 14 January 2023, the pursuer found among her possessions a copy letter dated 25 January 2009. When she consulted the deceased’s agents, Campbell Smith, a solicitor told her that they held her mother’s will and had not received the disputed letter. However, in her evidence, she said that she was very satisfied that her mother, whom she described as a meticulous woman particularly in matters of business, had written the letter and kept a copy, as was her practice.

The pursuer also said in her evidence that, while her mother had not told her she wanted to cut her sister out of the will, she was confident that the deceased intended to do so. She described the breakdown of the relationship, which resulted from the considerable time and effort the deceased devoted to helping care for the defender’s children. When challenged in cross-examination about the copy letter not being addressed to Campbell Smith, she responded that it was her assumption that the solicitors would have received the letter.

In her evidence, the defender said that her relationship with her mother had been good until the pursuer moved back in with her in 2006. She accepted that she had had no direct contact with her mother since 2006, but her daughter had attempted to make contact on one occasion in 2011. However, when the deceased opened the door, the pursuer moved her aside and acted aggressively to her.

For the pursuer it was submitted that the copy letter was a validly executed document in terms of section 4 of the Requirements of Writing (Scotland) Act 1995, and while it contained postscript following the signature, this was “other writing” as defined in section 12. It was acknowledged that there was a difference between a letter of instruction and one with testamentary effect but based on the extrinsic evidence the letter should be treated as an informal codicil.

The defender submitted that there was little basis for the pursuer’s assertion that the paper was a copy of a letter sent to Campbell Smith. It was open to the court to conclude the letter had never seen sent, and no direct evidence was led of the circumstances in which the letter was written or signed.

Changed her mind

In his decision, Sheriff Shead said of the parties’ evidence: “The pursuer seemed wedded to the idea that the copy letter was intended to be sent to Campbell Smith notwithstanding its terms. At least by the time she came to give evidence in my view the pursuer cannot genuinely have believed that the letter was addressed to Campbell Smith. However even if I were wrong in that view and she had merely persuaded herself that she had made the correct assumption about the addressee that would be of no assistance in the proof of her case.”

He continued: “[The defender] offered little in the way of an explanation as to why she did not make more determined efforts to rebuild that relationship. Her evidence in relation to her anxiety about encountering her sister at her mother’s may well have been true but in itself that anxiety could not provide a complete explanation of her lack of effort or interest in rebuilding the relationship.”

Considering the matters the parties agreed on, Sheriff Shead said: “Parties having agreed that their mother was a meticulous woman it is inconceivable that she would not have pursued the matter of the change to her will. Had she done so she would have made the position clear before she died. The obvious person to confide in about any change in her will was the pursuer but she did not do so. She left no written document suggesting that her will had been altered to reflect what was said in the copy letter.”

He added: “There was ample time for the matter to be formalised if the content of the letter truly reflected the deceased’s settled wishes. The more compelling inference appears to me to be that the deceased changed her mind and did not want to act on what she had written. After all the last insight into the deceased’s state of mind was as long ago as 2012 when she met Ms Raeburn. She did not die for more than decade after that. Even if it is assumed she was still upset with the defender at the time of her death that did not mean that she intended to change her will in the manner suggested in the copy letter.”

The sheriff concluded: “On the evidence in my view there is no basis on which to infer that the document was to be treated as an interim will. As Lord Ormidale said in Young’s Trustees v Henderson (1925) the question was whether the deceased in that case had intended the document ‘as a concluded expression of his settlement’ or whether he meant it ‘only as a paper of instructions’. It seems clear to me that it was the latter and there was no evidence to establish that the letter was to serve a dual purpose.”

Sheriff Shead therefore declined to make the orders sought by the pursuer, and granted decree of absolvitor.