Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 155
A340/06	OPINION OF LORD McEWAN in the cause (FIRST) MOHAMMED RAFIQUE; and (SECOND) NUSRAT BIBI NABI Pursuers; against (FIRST) MOHAMMED ASHRAF; (SECOND) MOHAMMED RAMZAN; (THIRD) SHAFQAT BANO NABI; (FOURTH) NASRA KOSER NABI; (FIFTH) SHAZIA KOSER NABI; (SIXTH) THAHIR AFTAB NABI; and (SEVENTH) ASIF SOHAIL NABI Defenders: ________________

Pursuer: Kinnear; Drummond Miller LLP

Defender: Stuart; Lindsays, WS (Third Defender)

2^nd October 2012

[1] The action before me is one concluding for the production and reduction of a will.

[2] The broad circumstances of the case are that the testator Ghulam Nabi died in Pakistan on 12 February 2005. It appears that he had two wives. The first is Shafqat Nabi and there are four children of that marriage. They are the third to seventh defenders and all live in Scotland. The second wife in Nusrat Nabi (a younger woman) and there are two young children of that marriage. They live in Pakistan. The deceased testator left two wills. The first one is dated 14 August 2003 and was apparently signed in a solicitor's office in Glasgow ("the Scottish will"). The second is dated 25 January 2005 and was executed on commercial premises in Pakistan ("the foreign will"). It appears that many of the beneficiaries under each will are common but the first wife only benefits under the foreign will and the exact distribution to all beneficiaries differ in both wills; hence the dispute.

[3] Let me now look a little further at the Record and the procedural history of the action to date. Although the papers are not marked I was told the defenders have the benefit of Legal Aid. The pursuers do not. The action began in June 2006 and the Record closed on 28 January 2008. After sundry procedure the case was sent to the Procedure Roll but that hearing was discharged. A proof was then set in December 2008 for 23 February 2010. That proof was discharged by the third defender on 2 February 2010 and later (administratively) a second proof was set for 31 May 2011. Some five weeks before that diet the third defender lodged a lengthy Minute of Amendment no 22 of process. That introduced a wholly new defence and in effect spoke of a fraudulent scheme and forgery. The result was that on 27 April, the Lord Ordinary with undisguised reluctance discharged the proof and commented forcefully in the minute of proceedings to indicate his displeasure. Thereafter a Procedure Roll debate was set in November and I heard parties on their pleas over three days in June 2012. Inter alia I was invited to exclude large parts of the defences from probation. I do not intend to rehearse the arguments ably presented to me since a new and distinct issue has arisen to which I will return below.

[4] The other undisputed matters of importance are these. The firm of solicitors who prepared the Scottish will have ceased to exist. In December 2010 a commission was held to take the evidence of a friend of the testator, Kartar Singh (Record page 17). He had been present in the solicitor's office when the Scottish will was executed. This witness, I was told has terminal cancer and now lives in Canada.

[5] One other matter which is on Record should be mentioned if only to exclude it. There are lengthy averments about the proceedings in the courts in Pakistan (Record page 7 onwards to page 10 and pages 11 and 12). It is fair to say that the averments about all of this are unclear. There is mention of another will dated 13 August 2003 but little is said about that.

[6] The narrow matter now in issue arose on the third day of the debate before me and has since matured into another (but short) Minute of Amendment for the third defender No 28 of of Process. It seeks to add a fifth plea‑in‑law in these terms "...the Will dated 14^th June 2003 not being the lawful deed of the deceased should be reduced ope exceptionis ..." On 28 August 2012 I heard argument about that and the answers lodged. I was moved to allow the Minute of Amendment.

[7] Mr Stuart for the third defender asked me to allow the amendment. He said there were no new issues of fact. The matter was incidental as she relied on the foreign will and expenses could cure any prejudice. Any need for a further commission could be done by video link. When the trustee has had to admit he relied on a forged receipt the amendment should be allowed in the court's discretion. He referred me to Rule of Court 53.8. The case of Donald v Donald 1912 SLT 436 was a sheriff court matter and should not fetter the Supreme Court. The case had a foreign element. A proof had had to be discharged because of illness and travel problems. Refusal of the amendment could lead to the raising of an action of reduction.

[8] The reply by Mr Kinnear was to this effect. The amendment should be refused. No attempt has been made to explain why it was so late, and it would mean that the debate on the merits had been wasted. The Scottish will enjoyed statutory presumption of validity and this was the first suggestion that it should be reduced. The pursuers in their note of argument had drawn attention to the omission in the defender's case (paragraph 6 on page 4). Counsel referred me to Lord Macfadyen's work Court of Session Practice E/104; McFarquhar v British Railways Board 1967 SLT (notes) 102; McPhail, Sheriff Court Practice 10.14 on page 350 and to Donald (supra). To allow the amendment would cause severe prejudice to the children of the second family and cause more delay.

[9] What then is to be done? The plea now proposed is a short one as was the one in McFarquhar. If I may borrow and adopt what Lord Hunter said there "...No acceptable reason or excuse was put forward on behalf of the defenders for their failure to include the plea...in their defences or to add to it ...during adjustment..." That applies to what has happened here. There can be no reason why the plea has been tendered now so late , when it could have been part of No 22 of Process eighteen months ago. The proposal radically alters the case and will present the pursuers with difficulties in re‑investigating the case. There is a further reason why it should not be allowed. In Lord Macfadyen's work there is mention of whether or not the amendment is relevant and competent.

[10] Other than in the full debate in June I was not addressed on Donald. It is true the case began in Dumbarton Sheriff Court but I think the decision covers the present case. The use of the plea ope exceptionis is more properly used to attack productions in a process and not a document which is the very foundation of a right. To do that requires a different procedure not in this action.

[11] For the reasons I have just given I am not persuaded that the defenders should be allowed to amend as proposed. I shall accordingly refuse their motion.