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  4. Notebook entry stating testamentary wish held valid will

Notebook entry stating testamentary wish held valid will

8th June 2015 | executries

A signed holograph entry in a notebook diary stating the writer's desire to leave “my wealthy remains” to one of her sisters has been held a valid will by a sheriff principal on appeal.

Sheriff Principal Mhairi Stephen at Edinburgh Sheriff Court allowed an appeal by Anne Hamilton against a sheriff's decision refusing her petition to be confirmed as executor nominate of her sister Melanie Gibson, who died on 7 October 2012.

Ms Gibson, one of six siblings, was divorced and had no children. There was evidence that she was a “functioning alcoholic”, but the sheriff considered there was no evidence to displace the presumption of capacity. After her death a notebook diary was found in her house. An entry dated 20 January 2012 included the lines:

“Nearly 51?

Life is shit at this time!!!

*Please remember. If Anne is still alive, I want her to have my wealthy remains – the house, pension, savings and everything else... [sic]

I hope my family accept this... [sic]

IT IS MY WISH.

Melanie Gibson.”

The sheriff held that other dated entries, three earlier and one later than this note, expressing a similar view in conversational style, counted against the crucial entry being accorded special status, especially where the next entry repeated the same wish in different words; and that an entry of 2010, which ended “P.S. I am of sound mind and body … so don't take this to a 'greedy lawyer!'” could only be taken as meaning that she did not want the notebook used as a will.

Sheriff Principal Stephen considered that so far as the other entries were relevant at all, they were consistent with the wish expressed. It was significant that the crucial entry was signed: Draper v Thomason 1954 SC 123. The sheriff had failed to analyse its content properly, and had placed too much reliance on it being an informal document: as decided in Colvin v Hutchison (1885) 12 R 947, “The court must consider the testator's language however expressed and then construe whether the words fairly bequeath his estate or part of it.”

The sheriff had found the deceased to be “lawyer averse”, and the reference to “greedy lawyer” was equally if not more consistent with her not wanting argument as to her wishes and not wanting to get lawyers involved.

Referring to the sentence about “Anne” as indicating the deceased's wishes “perfectly clearly”, the sheriff principal continued: “If that was not sufficiently clear the deceased then in capital letters states 'IT IS MY WISH'. It is fair to assume that the capitals are there for emphasis. The document is in her hand and properly subscribed. In my view it is difficult to contemplate a will in clearer terms. The meaning of the document in the sense of it being a will is obvious to me and unequivocally sets out her wishes and testamentary intentions.”

Click here to view the judgment. 

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