Q1) Facility & Circumvention and Undue Influence. Explain both and simple procedures to prevent this.
In Scots law, for a will to be valid it must have been created by a testator who possess two things at the time it was made; capacity and intention to test. For it to formally valid, it must meet the statutory requirements which are laid out in the Requirements of writing act 1995. The decisive factor to raise a case is whether or not the testator’s had been misguided to allow someone else to take advantage of their wishes. Problems can arise from allegations that the will was made under pressure.
An individual may suffer a degree of mental deterioration which, without amounting to insanity, leaves him vulnerable and easy to take advantage of. When this is the case, three elements must be present at the time the will was made. These are; being in a weakened state of mind, signs of fraud and also lesion. In other words, not being able to freely express his intention to allow personal gain for beneficiary. Lady Smith summarised this in the case of Horne v Whyte 2005 where it was stated that:
“… Three elements are clearly interrelated, they require to be looked at as a whole and the strength of the pursuer’s case on one matter may compensate for weakness on other matters.”
The concept of facility is clear, when an individual can be easily misled who suffers from a weakened state of mind, but not diagnosed with insanity. Where the water becomes clouded is when defining facility. If the testator is under the influence of drugs or alcohol or suffers from a mental illness, facility may arise from these however, it does not automatically qualify the testator to be facile. The facts of each case must be questioned and analysed. Lord Justice Clerk described it as where
“A person is in such a mental state that he is unable to resist pressure and… someone else can mould and fashion his conduct as he pleases.”
Bearing this in mind, the court are not quick to label a testator as facile. The views of medical practitioners hold a heavy weight in the decisions made as their opinions are conclusive. In Rennie v Stephen 1991 it was held that mild dementia was concluded by medical experts to not interfere with a person’s judgement. This highlights how strong medial opinions are, as they are objective.
Thus, the question to be asked will be the testator’s state of mind morally and constitutionally: Openness to machination, not a lack of understanding. The Perception of persuasion is vital in this matter.
Circumvention is defined as fraud or deceit. It is an intimidation operating on the mind as to bring the individual within entire control. This is challenging to prove as, it is generally only witnessed by the testator and by the time the challenge has been brought to light the testator may have already passed. When the alleged facile person is still alive, facility must be proved and also specific acts of circumvention or facts of circumvention for the court to infer. In Parnie v Maclean it was held that the degree of circumvention would depend on the degree of facility.
In the Horne v Whyte 2005 case, a housekeeper who was included in the homeowners will could only have been caused by her circumvention which amended his will. http://legalresearch.westlaw.co.uk
The greater the degree of facility the lesser the amount of circumvention necessary in order to set aside the will. Vice Versa. The medical evidence in such a case goes to defining the degree of facility. To enable a will to be set aside both facility and circumvention must be present.
Undue Influence is essentially, having a relationship of trust and being taken advantage. If a solicitor prepared a will for a client, there must be suspicion the solicitor took advantage of this trust and made a gain from the will for himself. When it is proved, the will is voidable and set aside. It is common for F&C and undue influence to coexist as seen in Ross v Goesselins 1926.
The doctrine of this was received from the case of Gray v Binny, where son discharged rights under entail in favour of mother after discussing with her solicitor after her death sought to reduce discharge and claim on her estate. The same solicitor was sole executor. Held that the case fails to distinguish capacity in which action brought. There is no need to show any weakened state of mind when it comes to undue influence. There needs to be some sort of professional relationship between deceased and person or having reliance on a person to any extent will do
Simple procedures to prevent this happening could be, Must ensure understands nature and effect of deed usual to need more than one visit may ask for instructions to be repeated to see if there is recall ought to see out with presence of family members/friends to minimise risk of facility and circumvention or undue influence must take instructions direct.