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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11436
Experience:  30 years as a practising solicitor.
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My sister has raised a Summons at the Court of Session

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My sister has raised a Summons at the Court of Session claiming that Testamentary Writings by our late mother were fraudulently obtained by me. As an aside, none of the writings financially advantage me and, indeed, one is with regard to changing our mother's Funeral Instructions. NOTES:- * The Will passed through Confirmation in February, 2013 -my sister's legal action was raised in November last year (i.e. after Confirmation). * The stage we are at, with regard to the Summons, is the lodging of Defences. This is the second stage of lodging Defences -i.e. more detailed than the first stage. The Summons notes:- "The pretended writings having been impetrated from the deceased by the by [sic] fraud or circumvention of the defender when the deceased was weak and facile and easily imposed upon, to the lesion of the pursuer, decree of reduction should be pronounced as concluded for." NOTE: I am the sole Executor of my mother's Will. The lawyers acting on behalf of my mother's estate have secured precognitions from 7 witnesses -mainly the carers who provided live-in, home-care for my mother. I have received an email from the lawyers which reads as follows below:- "As you will be giving evidence yourself which may overlap with the evidence of the other witnesses, I'm sure you will understand that it would not be appropriate for me to let you have sight of the precognitions of the other witnesses, for fear of tainting your evidence (which would undermine your credibility and ultimately our prospects for success). If you have any queries about that, please let me know." QUESTIONS ARISING Note 1: I have good reason, as a result of their numerous errors, for doubting advice given by the lawyers acting on behalf of my mother's estate. Note 2: I have every reason to believe that all the witnesses would support my defence but, in theory, I cannot rule out one or more of the carers having been 'got at' by my sister but whilst I would not put such an attempt past my sister I do consider that the carers are all of too high moral standards to succumb to such an attempt. 1). Am I legally entitled (as the Defender) to view the precognitions of witnesses (acting on behalf of my mother's estate and on my behalf as Executor)? 2). If the answer to the above-noted question is 'yes' what is your opinion as to whether or not I should read the precognitions of witnesses? NOTE: Judging from the Summons, the witnesses my sister will be using are her elder daughter and her husband -and there is not the slightest doubt that they will collaborate. I do not wish to be disadvantaged by the fact that my sister will not only know what is in the precognitions of her witnesses but is likely to have drafted those precognitions with them. 3). Generally, is it normal practice for a Defender to see the precognitions of those witnesses who support the Defender's position? 4). In general terms, how much detail should be in my own precognition -which I have yet to give? 5). My sister has sought to have all of our mother's Testamentary Writings 'struck out' including the one relating to our mother's Funeral Instructions. It changed those instructions from being cremated (as noted in the Will) to being buried on the country estate where she lived. The burial took place and, at her instigation, my sister has been communicating directly with me, in writing, with regard to the wording that will go on our mother's gravestone (the burial site is on land bequeathed to me). Is there any weakening of my sister's case by the fact that, at one and the same time, she is liaising with me, with regard to the wording on the gravestone, whilst seeking to have 'struck out' the Testamentary Writing changing our mother's Funeral Instructions from cremation to burial? Clearly those two actions contradict each other. As an aside, my sister's case is based on untruths and is motivated by her life-long jealousy of a younger sibling (me). I look forward to your response. Thank you. Michael XXXXXXXX Email:[email protected]

Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.


1). Am I legally entitled (as the Defender) to view the precognitions of witnesses (acting on behalf of my mother's estate and on my behalf as Executor)?

Legally yes, you are.

2). If the answer to the above-noted question is 'yes' what is your opinion as to whether or not I should read the precognitions of witnesses?
NOTE: Judging from the Summons, the witnesses my sister will be using are her elder daughter and her husband -and there is not the slightest doubt that they will collaborate. I do not wish to be disadvantaged by the fact that my sister will not only know what is in the precognitions of her witnesses but is likely to have drafted those precognitions with them.

As your lawyer points out it would be very unwise as you will be cross examined as to whether you have discussed the evidence in the case with any other party or been given the precognitions to read. If your sister chooses to be aware of the evidence of the witnesses on her side she will be laying herself open to criticism by your Counsel.

3). Generally, is it normal practice for a Defender to see the precognitions of those witnesses who support the Defender's position?

No, not normally. The solicitor will question you on any aspects of the precognitions that he considers appropriate but the precognitions are taken for the benefit of the lawyers and particularly in the Court of Session for Counsel who isn't allowed to speak to the witnesses outwith their time in the witness box.

4). In general terms, how much detail should be in my own precognition -which I have yet to give?

Your precognition will be the main one for your counsel and should be as detailed as it possibly can be. You should comment on every aspect of the adjusted pleadings both for the Pursuer and in respect of the adjusted defences and should comment on all documentary productions.

5). My sister has sought to have all of our mother's Testamentary Writings 'struck out' including the one relating to our mother's Funeral Instructions. It changed those instructions from being cremated (as noted in the Will) to being buried on the country estate where she lived. The burial took place and, at her instigation, my sister has been communicating directly with me, in writing, with regard to the wording that will go on our mother's gravestone (the burial site is on land bequeathed to me). Is there any weakening of my sister's case by the fact that, at one and the same time, she is liaising with me, with regard to the wording on the gravestone, whilst seeking to have 'struck out' the Testamentary Writing changing our mother's Funeral Instructions from cremation to burial? Clearly those two actions contradict each other.

An action of facility and circumvention seeks to have the whole will struck out. A party can't pick and choose. Either the will was made under duress by someone who was likely to be influenced or it wasn't. That's not to say that your sister wasn't in agreement with the funeral instructions and wouldn't have agreed to similar even if there was no will at all, so at best the point is probably neutral.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
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