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SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT INVERNESS
[2022] SC INV 31
INV-A83-19
JUDGMENT OF SHERIFF SARA MATHESON
in the cause
(FIRST) FIONA MARGARET THOMSON, Solicitor, of 52-54 Rose Street, Aberdeen,
AB10 1HA, borrowing the name of DOUGLAS SIMON STEWART qua Executor of
Hugh McCulloch, late of Isle View Nursing Home, Aultbea, IV22 2HU,
AND
(SECOND) FIONA MARGARET THOMSON, Solicitor, of 52-54 Rose Street, Aberdeen,
AB10 1HA, qua Guardian of Roderick Matheson McCulloch, residing at Isle View Nursing
Home, Aultbea, IV22 2HU, conform to guardianship order dated 17th May 2019
AND
(THIRD) LEDINGHAM CHALMERS TRUSTEE COMPANY LIMITED, a company
incorporated under the Companies Acts (Company Number SCO69050) and having its
registered office at Johnstone House, 52-54 Rose Street, Aberdeen, AB10 1HA, qua Executor
Nominate of the late David McCulloch
Pursuers
against
(FIRST) IVAN WARWICK, residing at Ardcruidh Croft, Heights of Docharty, Dingwall,
IV15 9UF; AND
(SECOND) JOCELYN LYDIA CROMARTY ROSE WARWICK, residing at Ardcruidh Croft,
Heights of Docharty, Dingwall, IV15 9UF; AND
(THIRD) DOUGLAS SIMON STEWART, residing at Brahan View, Arcan, Muir of Ord, IV6
7UL; AND
(FOURTH) MARIE CHRISTINE STEWART, residing at Brahan View, Arcan, Muir of Ord,
IV6 7UL
Defenders
Pursuers: MacLeod, Counsel instructed by Ledingham Chalmers, Solicitors
First & Second Defenders: Dunlop, Counsel instructed by Stronachs, Solicitors,
Third & Fourth Defenders: Self
Inverness, November 2021
The Sheriff, having resumed consideration of the cause, finds in fact:
2
1.
The late Hugh McCulloch was born on 22 January 1930 and died on 22 December
2020. Roderick McCulloch was born on in 1932. He is currently cared for within Isle View
Nursing Home, Aultbea. The late David McCulloch was born on 12 November 1934 and
died on 9 September 2019. These three gentlemen were brothers (hereinafter collectively
referred to as "the brothers"). The brothers lived together at Logie Farm, Muir of Ord ("the
farm"). They lived on the farm for many years and ran the farm together.
2.
None of the brothers has or had a spouse or issue. Their nearest relative is Hugh
Fraser who resides at Fearn, Tain. He is a second cousin of the brothers. Mr Fraser's
grandmother and the brothers' father were brother and sister.
3.
Hugh McCulloch left the farm to go into care at Isle View Nursing Home, Aultbea in
or about August 2017. He later died there.
4.
Roderick McCulloch left the farm to move into a property at Muir of Ord in or about
August 2017. He moved from there in or about July 2018 to live at Poolewe. He was taken
into residential care on or about September 2018 and remains there.
5.
David McCulloch left the farm to go into hospital for a number of months in or about
February 2017. He was then taken into care at Wyvis House Care Home, Station Road,
Dingwall, in or about August 2017. He later died there.
6.
Fiona Margaret Thomson, solicitor, was guardian of Hugh McCulloch by virtue of an
interlocutor of this court granted on 17 May 2019. She was originally the first pursuer in this
action qua guardian of Hugh McCulloch. Her appointment in that capacity ended on his
death. On 9th April 2021 the court granted authority to sist Hugh's executor, Douglas
Stewart (the third defender) in room of Ms Thomson and for Ms Thomson to borrow his
name to pursue the action on behalf of the estate of the late Hugh McCulloch.
3
7.
The second pursuer is Fiona Margaret Thomson, solicitor qua guardian of Roderick
Matheson McCulloch. Fiona Thomson was appointed as his guardian by interlocutor of 17
May 2019.
8.
The third pursuer is Ledingham Chalmers Trustee Company Limited. Ledingham
Chalmers Trustee Company Limited is the executor nominate of the late David McCulloch,
conform to deed of assumption and resignation dated 29 September and 9 October 2019.
9.
The first defender is Ivan Warwick and the second defender is Jocelyn Lydia
Cromarty Rose Warwick. They are married and reside together at the address in the
instance.
10.
The third defender is Douglas Simon Stewart and the fourth defender is Marie
Christine Stewart. They are married and reside together at the address in the instance.
11.
This action concerns heritable property at Logie Farm ("the farm"), Muir of Ord,
which is within this sheriff court district. This court accordingly has jurisdiction.
12.
Until in or around 2011 the brothers had good relationships with their immediate
neighbours, including Dorothy Fraser and Angus Ross. They would work together on each
other's farms to jointly complete large tasks, such as harvesting. Following a fire at Logie
Farm in or around 2000, Hugh McCulloch stayed with Angus Ross for a few nights. The
relationship between the brothers and neighbours changed, so as to reduce their closeness,
following increased contact between the brothers and the third defender in or around 2011.
13.
From in or around 2011 the third defender became more involved with the brothers'
affairs. He befriended the brothers. The brothers did not instigate his involvement in their
lives. The brothers did not ask any of the defenders to intervene in their affairs. Despite this
the third defender regularly attended at the farm. The brothers stopped interacting to the
same extent with their neighbours.
4
14.
On 18 February 2013, Hugh McCulloch signed a power of attorney ("POA") in
favour of the first and third defenders. He trusted them.
15.
On 11 March 2013 Roderick and David McCulloch signed powers of attorney in
favour of the first and third defenders. They trusted them. Roderick McCulloch revoked his
power of attorney on 16 October 2018.
16.
All of the said powers of attorney were prepared by Alasdair Fraser, solicitor,
Inverness. All of the said powers of attorney were witnessed by him. The said powers of
attorney were registered with the Office of the Public Guardian in June, July and August
2013.
17.
Each of the brothers wished to live on the farm until his death. Each of the brothers
expressed a wish that they did not wish to be placed into residential care.
18.
The brothers each had separate roles on the farm. Hugh McCulloch managed the
finances and most commonly dealt with the brothers' shopping and banking. He also
worked on the farm. Roderick McCulloch worked the farm and dealt with the cattle and
sheep. David McCulloch managed the household and did all of the cooking. The brothers
had a close relationship with each other and were private individuals.
19.
David McCulloch was extremely shy. He rarely left the farm. He did not act
independently of his brothers.
20.
The brothers used a solicitor, Mr Alpin Stewart, latterly of Munro & Noble, Solicitors,
Dingwall, to deal with their legal affairs from in or around 1998 until 2013. Mr Alpin
Stewart carried out various legal transactions for the brothers during that period of time,
usually involving the sale of small bits of farm ground to others.
21.
The brothers met the third and fourth defenders some time prior to 22 January 2010.
5
22.
The brothers met the first defender some time prior to 22 January 2010 and the
second defender around March 2013. The third defender introduced the brothers to the first
and second defenders.
23.
On or about 1 April 2011 the solicitor for the third and fourth defenders wrote to
Alpin Stewart, solicitor for the brothers at that time, offering to purchase 4.5 acres of the
farm, being a piece of it at Highfield Park, at a price of £100. The third and fourth defenders
intended to build a house on the land.
24.
Alpin Stewart met with Hugh McCulloch after receipt of this offer. Hugh McCulloch
was brought to Alpin Stewart's office by the third defender. Alpin Stewart saw
Hugh McCulloch alone. He cautioned against selling the land to the third and fourth
defenders for well below value. Hugh McCulloch indicated that the McCulloch brothers
were to receive some form of care going forward in exchange for the land and that the third
and fourth defenders would look after them as they got older. Alpin Stewart pointed out
the possible shortcomings of this.
25.
Hugh McCulloch accepted Alpin Stewart's advice that the offer was not acceptable.
On 7 April 2011 Alpin Stewart wrote to A Fraser & Co. indicating that the offer was not
acceptable as it would result in the brothers ending up significantly out of pocket, when the
costs of transfer were taken into account.
26.
Between 7 April 2011 and 17 May 2011 Hugh McCulloch was taken to Alpin
Stewart's office by the first defender. Hugh McCulloch advised that the brothers wished to
sell the land to the third and fourth defenders for the same price, but in addition that their
legal expenses in connection with the sale were to be met. On 17 May 2011 Alpin Stewart
wrote to A Fraser & Co. confirming this position.
6
27.
On or about 11 January 2012 the brothers sold 4.5 acres of the farm to the third and
fourth defenders for the sum of £100 plus payment of the attendant legal fees and outlays.
The third and fourth defenders were not able to get planning permission to build on this
land.
28.
In or around early 2013 Alpin Stewart received a mandate from A Fraser & Co.,
Solicitors, Inverness, requesting the title deeds of Logie Farm and indicating that they were
now instructed to act on behalf of the brothers. The brothers had not expressed any prior
dissatisfaction, about him or his services, to Alpin Stewart. The involvement of A Fraser &
Co was arranged by the first and third defender. The brothers did not require a different
solicitor in light of their relationship with Alpin Stewart.
29.
Alasdair Fraser, principal solicitor at A. Fraser & Co., had previously acted for the
first and second defenders and, separately, for the third and fourth defenders. He had
known them all for several years. He was not known to the brothers.
30.
The third defender acted as the brothers' power of attorney following registration of
the relevant documents with the Office of the Public Guardian. The first defender did so to
a lesser extent. In or around 2013 the third defender signed a cheque in the sum of £40,000
from the brothers' joint account in favour of the first defender; said signature was in his
capacity as Attorney. The third defender advised external agencies, such as the brothers' GP
surgery that he was the brothers' Attorney.
31.
Between August 2012 and August 2014 the first and second defenders lived in
Paisley. They travelled to their home near Dingwall frequently.
32.
Between 2013 and 2017 the third defender arranged a PO box to receive the brothers
mail. This allowed the third defender or his family members first access to any mail sent to
the brothers.
7
33.
On 25 June 2014 the brothers signed a disposition of heritable property in favour of
the four defenders. This conveyed the whole farm to the defenders for "love, favour and
affection" and for no monetary consideration. The disposition was prepared by Alasdair
Fraser, solicitor and witnessed by him. The brothers did not understand the nature of the
document which they signed.
34.
The circumstances of the said conveyancing transaction carried out by Alasdair
Fraser, solicitor, were irregular in the following respects:
i.
He took initial instructions from the first and third defenders in respect of the
proposed transaction, rather than from the brothers.
ii.
He failed to advise the brothers or any of the defenders that he would be acting
as solicitor for both the disponers and disponees in respect of the transaction.
iii.
He took instructions from the third defender, a disponee, as to the value of the
farm for the purposes of calculating the amount of registration dues to be paid.
This information should have come from the disponers.
iv.
He did not provide any written advice to the brothers that the proposed
transaction was against their interests, nor did he discuss inheritance tax or
future care home fees. He did not recommend that any independent financial
advice should be taken in respect of the proposed transaction.
v.
His signature on the disposition prima facie differs from other examples of his
signature.
vi.
He had not been made aware by the third defender that Hugh McCulloch was
diagnosed with dementia and that David McCulloch was ill.
vii.
He did not keep file notes of any meetings with the brothers, including the
meeting to sign the disposition.
8
35.
At the time of signing the disposition on 25 June 2014 Hugh McCulloch was
diagnosed as suffering from dementia. This definitive diagnosis was made on 21 January
2014. The third defender was present with Hugh McCulloch when this diagnosis was made.
The third defender was aware of Hugh McCulloch's diagnosis and resulting mental frailty at
that time and thereafter. In particular he was aware of it as at 25th June 2014. By October
2014 Hugh McCulloch had lost capacity.
36.
On 21 March 2014 David McCulloch attended his general practitioners' surgery
accompanied by the fourth defender. The nurse treating him recorded him as being
unkempt and incontinent. On 1 July 2014 he presented with confusion at an out of hours
clinic. On 25 June 14 his cognitive ability was impaired. He was suffering from dementia.
The third and fourth defenders were aware of his mental frailty in June 2014 when the
disposition was signed.
37.
In or around August 2017 Helen and Phyllis Fraser moved into the farm. They did
so at the request of at least one of the brothers. Helen Fraser attended the police station in
Dingwall on 23 August 2017 in order to report alleged impropriety by the first and third
defenders whilst acting as Attorneys.
38.
Police and social work commenced an investigation of the first and third defenders
following the said police report. They concluded that there was no irregularity and assisted
the defenders in ensuring the Fraser sisters did not return to the farm.
39.
On the removal of the Fraser sisters from the farm, Hugh McCulloch was moved to
Isle View Nursing Home, Aultbea. Roderick McCulloch remained at the farm alone. He
was then moved to a new build property at 11 Wards Croft, Muir of Ord.
40.
11 Wards Croft, Muir of Ord, was a property purchased by the brothers in their joint
names by the first and third defenders as powers of attorney. Roderick McCulloch lived in
9
the property for a period of around nine months until he purchased a property in Poolewe.
This property was close to Isle View Nursing Home and allowed him to visit
Hugh McCulloch more frequently and to visit both his brothers on the same day.
41.
Hugh McCulloch previously made a Will dated 1 November 2007. In terms thereof
he bequeathed two pecuniary legacies of £50,000 each to Catherine MacDonald and
Catherine Seager, respectively. He bequeathed the residue of his estate to his surviving
brothers. Hugh made this Will with Alpin Stewart, solicitor. Hugh revoked this Will and
made a fresh Will on or about 25 June 2014 (the same date as the signing of the disposition)
with Alasdair Fraser, solicitor. In terms thereof Hugh McCulloch made no pecuniary
legacies and left the residue of his estate equally between his surviving brothers, whom
failing between the first and third defenders.
42.
On or about 23 July 2018 the defenders disponed to and in favour of Martin John
Coats and Jonathan James Coats 11 acres of Logie Farm for the sum of £50,000. On or about
22 January 2019 the defenders disponed to and in favour of Muir of Allangrange Limited 23
acres of Logie Farm for the sum of £140,000. On or about 28 May 2019 the defenders
disponed to and in favour of Caitlin O'Connor Logie Farmhouse for the sum of £200,000.
The lifetime alienation of the farm by the brothers for no consideration deprived them of
capital of £390,000.
43.
By allowing the brothers to gift Logie Farm to them the first and third defenders
acted in breach of their fiduciary duties to the brothers as their powers of attorney.
44.
No defender has offered to repay any sum to the pursuers or their estates. The
second defender has transferred her share of the proceeds of the farm to her husband, the
first defender. She considered the transfer of the farm to her to be unusual.
10
45.
The second defender assisted the brothers in attending to cattle and sheep records,
tagging and shearing on the farm from March 2013.
46.
In October and November 2018 Roderick McCulloch alleged that he had no access to
his money, that the third defender had been buying properties with his funds, paying for
family member's weddings and had got rid of his cattle and truck without accounting to
him for the proceeds. He maintained that he was fearful of the third defender. He said he
did not want to replace Alpin Stewart as his solicitor.
Finds in fact and in law:
1.
The disposition of Logie Farm was signed by the brothers when they were aged 84,
82 and 79 years respectively. It was signed when they were of deteriorating health and
susceptible to influence.
2.
The first and third defenders took advantage of the brothers by having the farm
transferred to them and their respective spouses.
3.
The first and third defenders had assumed an ascendancy in relation to the affairs of
the brothers and had excluded others, including Alpin Stewart, Dorothy Fraser and Angus
Ross, with whom the brothers had previously had good relationships.
4.
The effect of the disposition was to prejudice, disadvantage and to the lesion of the
brothers.
5.
The first and third defenders improperly procured the disposition by fraud or
circumvention when the brothers were weak and facile.
6.
The brothers were not given any independent legal advice or proper financial advice
in relation to the transfer of the farm.
11
7.
The disposition signed on 25 June 2014 having been impetrated from the grantors,
Hugh, Roderick and David McCulloch through fraud or circumvention et separatim undue
influence when the grantors were weak and facile and easily imposed upon decree of
reduction should be granted.
8.
The defenders, having received money in consideration of disponing the property
acquired by them through fraud or circumvention et separatim undue influence, are therefore
liable to make reparation to the pursuers therefor.
9.
The sum second craved being the sums received by the defenders for the sale of the
farm and this being the loss to the brothers' estate, they are entitled to reparation therefore.
THEREFORE:
Repels Pleas-in-law One to Fourteen for the first defender and One to Ten for the second
defender and Pleas-in-law One to Seven for the third and fourth defender; Sustains Pleas-in-
law Three to Six for the Pursuers and grants decree in terms of craves One and Four for the
pursuers; and reserves all question of expenses meantime.
NOTE
Introduction
[1]
This case concerns three elderly brothers, Hugh McCulloch (hereinafter "HMcC"),
Roderick McCulloch also known as "Roddy" (hereinafter "RMcC") and David McCulloch
(hereinafter "DMcC"), collectively "the McCullochs or the brothers". They were all
unmarried and lived together on Logie Farm. In 2013 they each appointed the first and third
defenders as their powers of attorney. In June 2014 they each purportedly signed a
disposition transferring Logie Farm to their attorneys and their respective spouses.
12
[2]
The pursuers' case is that the disposition has been impetrated from the McCullochs
through fraud or circumvention, et separatim undue influence when they were weak and
facile and easily imposed upon. They crave reduction of the pretended dispositions and
payment in the sum of £390,000 (this being the sums achieved by the defenders upon sale of
the farm premises in or around 2018 and 2019).
[3]
The defender's case is that everything was very much done in accordance with the
brothers' wishes. They were close friends of the defenders and viewed, certainly the third
and fourth defenders as family and instructed their independent solicitor to carry out the
work involved in gifting the farm to the defenders.
Procedural history
[4]
The action was warranted on 17 June 2019. After sundry procedure, none of which
seems noteworthy for present purposes, I presided over a commission to obtain the evidence
of RMcC on 13 February 2020 at Isle View Nursing Home, Aultbea. The report of that
commission is item 22 of process. I then presided over a debate between parties whereby I
allowed parties a proof before answer of their respective averments. The judgment in
respect of the diet of debate is dated 26 June 2020 ("the debate judgment").
[5]
The proof before answer commenced on 18 May 2021 and proceeded over a further
10 days of evidence, concluding on 8 September 2021. The matter was adjourned to a
hearing on submissions on 6 October 2021 at which point I made avizandum.
[6]
The pursuers were represented at proof by Mr R MacLeod, Counsel. The first and
second defenders were represented by Mr G Dunlop, Counsel. The third and fourth
defenders were earlier represented in the action by Swarbrick Law, Aviemore, but by the
time of the proof before answer were representing themselves. During the proof the fourth
13
defender had a lay supporter in terms of rule 1.3A of the Sheriff Court Ordinary Cause Rules
1993, being her daughter, Marina Berkenheger.
[7]
The proof took place in person, this being the preference of parties and the court,
with respect to the voluminous productions and with respect to the fact that the third and
fourth defenders were representing themselves. In addition there were clear questions of
credibility to be resolved; this being better done by witnesses being present in court rather
than on video link. All witnesses appeared in person, with the exception of Dr Vickerstaff
for the first and second defenders, who appeared by video link from her surgery (with all
parties present in court).
[8]
The parties entered into a joint minute agreeing formal matters, such as the fact that
the copy medical records were true copies of the originals. At points during the proof
various witnesses (mainly professional witnesses) were interposed, mainly for their
convenience. This was done with the consent of all parties.
[9]
The parties led evidence from a number of witnesses; I comment on each of them
below.
PURSUER'S PROOF
[10]
The first witness for the pursuers was the second pursuer. Fiona Thomson, is a
Solicitor and a partner with Ledingham Chalmers, Solicitors. She works in the area of
private client and has done since 2000.
[11]
She was approached by Highland Council asking if she would be agreeable to being
appointed as guardian to the three brothers. She was advised of some concern about funds
that were available to the brothers. She was aware that there had been previous Attorneys
14
in place. Ms Thomson spoke to Production page 124, a copy of the court order appointing
her as guardian for RMcC on 17 May 2019 and the duties conferred upon her thereby.
[12]
Ms Thomson gave evidence about steps she then took regarding the brothers'
finances. She gave evidence that Production pages 1-4 was the disposition transferring title
of Logie Farm to the defenders for "love, favour and affection". She was not aware of any
documents in the brothers' affairs that suggested any bilateral arrangement between the
grantors and grantees of the disposition.
[13]
This witness spoke to the three Powers of Attorney (hereinafter "POA") granted by
the three brothers; all of which were apparently witnessed by "A Fraser", the same witness
to the disposition. The witness gave evidence about the "Declaration of Certifier" pg 10g of
Pursuer's productions and what that required the certifier to do. She gave evidence that you
are certifying that the POA has been entered into appropriately and you are content that the
person granting it is aware of what they are doing and is doing so of their own free will.
The certifier in each of the brothers' case was Alasdair Fraser.
[14]
The witness then gave evidence that a welfare POA only takes effect when the adult
becomes incapax, but for financial powers commencement depends on circumstances. In this
case financial powers could have commenced immediately, if that's what the brothers
wanted, but in respect of welfare powers they would have needed to be incapax. The
witness gave evidence that the disposition of Logie Farm in favour of the defenders was
signed by the brothers not their attorneys and gave evidence that we could take from that
that the brothers must have been capax at the time of signing the disposition.
[15]
The witness gave evidence that she had raised this action as she has a duty to the
brothers to deal with their assets in their best interests. When she became aware of the
transfer of land and no payment in return she realised she may have to account at a later
15
stage if any of the brothers were in residential care and their resources reduced so that local
authority assistance was sought. In that event the authority could examine the alienation
and ask questions about it. The witness was aware of no reason for the brothers to give the
farm away for no consideration. There was no paperwork within their files that would
explain why they did this, nor any other information. It might be a normal act of gifting, but
the witness thought that would be very unusual and hadn't seen that kind of gift before,
outwith a family. She struggled to see how it could have been in their interests to transfer
the farm for no consideration.
[16]
The witness was asked about Page 1294 of the Pursuer's productions, a file note from
the file of A Fraser & Co, re the transfer (repeated in full at paragraph [131]). The witness
was asked about what she thought the meaning of the note was. She responded that: "there
is a thought that it is not quite the normal way of doing things." She said that if she had
been asked to conduct this work she would "bend over backwards" to make sure there was
another solicitor involved.
[17]
Ms Thomson's current interest re the brothers is that she is no longer guardian for
DMcC and HMcC, as both have died. Her firm's trustee company act as co-executors to
DMcC's estate and the witness is still RMcC's financial guardian. RMcC is also the
beneficiary of HMcC's estate.
[18]
In cross-examination by Mr Dunlop the witness was asked:
"Where have three men in their late 80s to leave their estate when they die?"
to which the witness answered:
"It is entirely up to the brothers".
The witness confirmed that the disposition of the farm was signed by the brothers
personally, not by their Attorneys, even though the POAs were in place by that point.
16
Ms Thomson gave evidence that her involvement with the brothers started in 2019 and she
could not assist with the views or wishes of the brothers prior to that.
[19]
It was put to Ms Thomson that the transaction causing RMcC's later concern was the
2011 transaction for £100, not the transfer to the defenders. The witness responded:
"His concern referred to "the farm", what he means by that I don't know......he
referred to it as "the farm" so if it was just land I would have thought he would have
referred to it differently."
The witness was asked if she knew what was meant by the 2011 transaction and she replied
she did not. She was directed to Item 6-7 of process, which bears to be a letter about the
third and fourth defenders offering to buy land from the brothers for £100. It was put to the
witness:
"that is effectively a gift?"
to which she responded:
"It is a sale for under value."
It was put to the witness that if we hear about a close relationship between the brothers and
the defenders that would provide an explanation for the transfer of the farm to them, to
which she responded in the affirmative.
[20]
I found Mrs Thomson to be a credible and reliable witness; she was acting in the
brother's affairs in a professional capacity and came across in a professional manner.
[21]
Ashleigh Dunnett is a social worker with NHS Highland for the past five years. She
works in adult services and was allocated social worker for the brothers from October 18 to
July 19. She took over from Catriona (Coll). In this capacity she attended a case conference
about the brothers on 2 Oct 18 (page 1643 of the Pursuer's productions). She gave evidence
her manager had asked her to attend as there was the suggestion the case was going down
the adult support and protection route and that needed two council officers. This was an
17
initial case conference- at the enquiry stage where a worker looks into allegations made then
presents these to a case conference where all findings are discussed with a multi-disciplinary
team.
[22]
At the meeting the allocated social worker provided information that the POAs were
not acting in the best interests of the brothers and were obstructive. She told the meeting
that it had become apparent that [the third defender] had a powerful influence over the
brothers. Ms Dunnett met RMcC maybe a week or so after the meeting. He wanted to
revoke his POA and wanted some support to do that. At that stage he was very frail and
underweight, he had bruising on his face, around his eyes, he was very angry at what had
happened to him and his brothers; very upset but quite relieved things were in the process
of happening and that he was revoking the POA- which would give him more control back.
[23]
The witness gave evidence that after the initial conference the case went to a large
scale investigation, at which she was council officer. The witness had discussions with
RMcC, who was quite open about what had happened to him; namely he alleged he had
been defrauded by the third defender. The witness supported him to go to both of his banks
to prevent the POAs accessing any further funds. The witness gave evidence that she had
these discussions with RMcC fairly regularly. Whenever she met him he would talk about
his farm, how he and his brothers lived together and his general frustrations- that it was not
right that people could do this to him and his brothers- that he had no access to his money.
He said the third defender had been buying properties for himself, paying for family
members' weddings, getting rid of his cattle and his truck and RMcC said he got no money
for it. These discussions were in the period middle of October 2018 up to Nov 18, when they
were tailing off.
18
[24]
The witness also gave evidence about arranging for RMcC to see Logie Farm house.
RMcC asked to do this as he missed the farm a lot. RMcC said he thought his farm had been
sold by the POAs, he thought houses were being built on the property and there was
someone living in the farm house. The witness was not sure how he came by that
information, but that is what he relayed to her.
[25]
The witness was present when RMcC provided the affidavit at page 1177 of the
pursuer's productions. The solicitor who prepared it asked open questions. RMcC had a
discussion with this witness about Alpin Stewart. He said he was his family solicitor for a
long period of time and he didn't instruct Mr Alasdair Fraser. RMcC said that on more than
one occasion. He also said that he and his brothers had willed the farm to his cousin, Mr
Fraser at Fearn. He said that to the witness a few times. He was quite frustrated and upset
about losing the farm and his property.
[26]
Asked if Roddy was confused or unreliable in April 2019 the witness said:
"he was assessed as having capacity by his GP, also by a psychiatrist and both
assessed him as having capacity to make decisions."
When asked:
"Even if he had capacity it might be said he was a bit confused or unreliable?",
the witness responded:
"I wouldn't have said he was confused."
[27]
In cross-examination by Mr Dunlop the witness accepted she couldn't speak to what
the brothers were like in 2014, or their wishes or relationships with other people. She
thought RMcC had capacity to revoke his POA in 2018. It was put to her that if he had
capacity to revoke it he must have had capacity to enter into his POA 6 years earlier. The
witness responded:
19
"Roddy was scared of his POA...."
[28]
Various alleged inconsistencies were put to the witness. For example RMcC saying
he had only met the first defender on one occasion, when approached by him at the mart
and saying he had only met the third defender once in Lidl. It was put to the witness that if
the court accepted both individuals knew RMcC (prior to meeting them at the mart and in
Lidl respectively) then he must be mistaken. The witness accepted they could not both be
correct.
[29]
In cross-examination by the third defender it was put to the witness that all of her
information came from Catriona Stewart, another social worker. She disagreed with this. It
was put to her that the third defender had known the brothers for forty years. The witness
indicated RMcC had said to her that he had not known him for that length of time. The
witness was asked if she had any concern that some things RMcC was saying were not true;
to which she responded: "No." She was asked:
"Did you question him to provide evidence to back up allegations against the
POAs?"
The witness replied:
"We have the bank statements but when someone comes to us in a state of fear it is
our job to support them, not to tell them we don't believe them."
She was then asked:
"When did Roddy come to you in a state of fear?"
to which the witness responded:
"He was referred to Social Work because he was scared. Concerns were shared by
Wyvis House that Roddy was apparently very hungry and underweight and there
were concerns information, such as letters, were not being shared with him. Sandra
met with him and he disclosed he was scared and he was moved to a place of
safety."
20
This occurred in late September 2018.
[30]
I found this witness to be credible and reliable. I formed the impression that she was
trying to do her best to assist the court. However, as her involvement dates from October
2018 her evidence was of limited relevance as to what occurred in June 2014; save to
demonstrate that four years on RMcC was clearly afraid of the third defender and unhappy
with his actions. The difficulty with this is that, given I accept that RMcC knew the third
defender far beyond having met him once in Lidl, the rest of the information that he was
providing at a similar time is cast into doubt.
[31]
The next witness for the pursuer was Mrs Karen Beaton, another Social Worker with
NHS Highland. She is also based in the adult team and has been a Social Worker for 20
years. She became involved with the brothers in early 2017 as duty Social Worker. She was
asked to make contact with the GP for the brothers, following on from a police concern that
had come into the Social Work Department (SWD). HMcC, having previously surrendered
his driving license, had been stopped when driving and police had followed this up with a
visit to the farm and this had caused them to highlight welfare concerns to the SWD.
[32]
The witness spoke to an email (Pg 1649 of the Pursuer's productions) that she
received from the brother's GP on 3 March 2017. In the email Dr Fletcher spoke of a "social
crisis waiting to happen".
[33]
The witness again became involved with the brothers in August 2017 when she was
again on duty and she met with both HMcC and RMcC that day. The meeting came about
after a police concern received at the SWD office that a lady called Helen Fraser, who was
residing with HMcC and RMcC at Logie Farm, had taken RMcC to the police station in
Dingwall and raised concerns regarding the sale of land and about the farm house being
sparse in furnishing. As a result the witness was asked to undertake a home visit and
21
attended at the farm with two district nurse colleagues. She met with Helen Fraser, her
sister Phyllis and both HMcC and RMcC. The witness was told at the visit that Helen and
Phyllis were second cousins of the brothers and had also been made aware of that by the
police. The purpose of her visit was to check on the welfare of RMcC and HMcC. At the
time of the visit the witness was aware there were POAs in place and that the Attorney's
were not these ladies.
[34]
The witness became the assigned Social Worker in December 18. In December 2019
the witness had discussions with RMcC in relation to the transfer of the farm, along with
Victoria Leslie, solicitor. He said he was aware of paperwork being signed but that he didn't
think that was anything to do with a transfer of the farm. The witness had had other
discussions with RMcC as he would regularly bring up his concerns that he would always
have wanted the farm to go to his cousin, Hugh Fraser, and he would never have signed
anything over to anyone else.
[35]
In cross-examination by Mr Dunlop the witness gave evidence of observing a
marked deterioration in RMcC's mental capabilities between December 19 and February 20.
The witness was shown an email (Pg 602) from Les Hood, who she agreed was her former
boss in the SWD, dated 20 Sep 17. In the email, which was read to the witness, Mr Hood
writes of:
"a lot of evidence of RMcC being inconsistent and unreliable in his memory and
extremely suggestible and compliant to the last idea that is put to him."
The witness was asked if that reflected her own opinion in summer 2017. She said:
"When I was visiting it was the first time I had met him. Some of the conversation
was being led by HMcC and while I was there he was also sharing information not
prompted by me and which I felt satisfied was coming from him."
The witness could not comment on how Les Hood had formed his view.
22
[36]
The witness agreed that the Attorneys remained in post and carried out their duties
in 2017, although she said that there was an adult support and protection case conference
held re DMcC and concerns re the third defender not acting in the best interests of DMcC
when he was in Ross Memorial for six months and medically fit for discharge. A discharge
planning meeting was held to which the third defender was invited but he didn't attend; it
was felt by the SWD that the best interests of DMcC were not being met by the third
defender at that time. That was in respect of his failure to attend the meeting, his failure to
share contact details for the other POA- the first defender- and his insistence that the SWD
not go to visit RMcC at the farm without him being present, despite RMcC having capacity.
It was put to the witness that the SWD had pre judged their approach to meetings and were
assuming wrongdoing without properly investigating matters. The witness did not think
this was correct.
[37]
In cross-examination by Mr Stewart the witness was asked if she had any concern
that some of the things R saying were not true. She responded:
"I had no reason to believe that what he was saying wasn't true."
The witness was asked if she was aware of the brothers having a 40 year plus relationship
with Mr Stewart and his family, to which she responded;
"I am not."
There were other questions in this vein.
[38]
I found this witness to be professional and trying to assist the court, but I was not
sure about the depth to which any social work witness had accessed or investigated the full
picture of the brother's lives. In particular I was not clear as to how Les Hood had reached
the positive conclusion that he apparently did about the POAs in September 2017.
23
[39]
(Ms) Joanne Hammond or MacRae is Area Co-ordinator for Advocacy Highland and
previously worked as an advocate in the same organisation for four years. Her role was to
meet with individuals and report their views, if they are unable to do so for themselves. In
this capacity she was referred the case of RMcC and went to visit him on 13 Dec 18. In
advance of this meeting she was given certain information as part of the referral. She was
told he was in a place of safety and not to disclose that and was asked to find out his views
re where he would like to live and his views on POAs he had had. She was told he had two
brothers and originally stayed on a farm then moved to Muir of Ord and had been in
Poolewe before Isle View care home. She met RMcC in his room in Isle view Care Home
and they were alone for the meeting.
[40]
Ms MacRae described the meeting. She said when she first went in she introduced
herself and showed her ID card and gave RMcC a leaflet about advocacy and her business
card. She told him Ashley (the SW) had made a referral for him to speak to someone
independent. They had a chat about things in his room, such as pictures from his family
home and this helped to put him at ease. She started asking some questions, open
questions, as in how he knew [the third defender] and he answered what she asked quite
fully. He told her the story and his views and she made notes.
[41]
The witness was shown page 1351 of the pursuer's productions, paragraph two and
confirmed that information came from her handwritten notes from the meeting with RMcC.
This information was contained in minutes of a Highland Council Health and Social Care
Initial Multi-Disciplinary Planning Meeting under Adult Support and Protection Procedures
in respect of the brothers. The information provided by the witness to the meeting was:
"Joanne expressed that he [RMcC] had said he didn't like it in Poolewe and he
missing (sic) seeing people. [The third defender] was nasty and he did not trust him
at all. When asked if [the third defender] hurt him or his brothers, RMcC stated not
24
physically but there is no trusting him. RMcC stated that [the first defender] is a
minister and should not have done this. RMcC explained that [the third defender]
had sold the farm to the policeman known as [redacted in original] and also
mentioned [the third defender] was funding his son's university costs. RMcC was
not sure if they (he and his brothers) still owned a house and didn't know how much
money was left. He wanted to see Logie Croft again if it was possible."
[42]
The witness was asked what her view would be if it was suggested to her that RMcC
was susceptible to agreeing with something someone said to him. She responded:
"He didn't have anything to agree with me about. I knew nothing about it so I
disagree with that from my experience."
She was further asked, with reference to page 602:
"When you were asking questions were you putting ideas to him?"
She replied:
"To be honest I hardly asked him any questions and he carried on telling me things
on his own and he moved on from that naturally."
[43]
My view of this witness was that she was very professional and skilled in her task as
advocate. She was aware of the need to guard against "leading" any person that she was to
advocate for, such as RMcC, and that she took care not to do so. Accordingly, I was
confident that it was RMcC who was genuinely expressing his own concerns about the first
and third defender when the witness met with him in December 2018.
[44]
Hugh Fraser is a 75 year old man, partially retired but still working part-time as an
undertaker. He lives in Fearn, about 7 miles from Tain. His grandmother and the brother's
father were brother and sister. This makes him a cousin of some degree to the brothers. He
gave evidence of visiting the brothers once a year, with his wife and aunt. When his mother
was alive she would also visit. They also used to meet at the Black Isle show and have a cup
of tea annually. However, this was prior to the early 2000s when the show got too big. Mr
25
Fraser used to phone on the Saturday before the Sunday to let the brothers know he was
coming.
[45]
Asked to describe the brothers, Mr Fraser replied:
"I found them ok, I didn't see anything wrong. [DMcC] had a disability and you
couldn't make a lot of conversation with him, but with {HMcC] and [RMcC] there
was no problem at all".
Mr Fraser did not know what kind of disability DMcC had, but it made conversation
difficult. He had always been the same in all the years the witness visited.
[46]
Mr Fraser described his relationship with the brothers as very strong. He said when
his mother died he phoned them and asked them if they could come to the funeral and take
a cord and they did this and sat with him at the funeral. Mr Fraser was not aware of the
brothers having any other relatives.
[47]
Mr Fraser gave evidence that on two or three occasions HMcC and RMcC said the
farm would be left to him and he could build a house wherever he wanted. One such
occasion was on the day of his mother's funeral. The witness took this "with a pinch of
salt". They never said why they wanted to give him the farm and he never asked them. His
relationship with the brothers never changed throughout the years.
[48]
Mr Fraser never heard the brothers speak of the third defender at all. The first
defender's name came up when the witness mentioned he was working for the undertaker.
The brothers said they had met the first defender and he "liked a wee dram and telling dirty
jokes"; this appealed to HMcC. The witness was shown page 1296 of the pursuer's
productions, a letter purportedly from the first defender to him explaining that he was POA
to the brothers and that they had all left Logie. He said he had received it after he had
discovered the brothers were no longer living on the farm. He knew DMcC was in Wyvis
House so he had left a letter for RMcC in Wyvis House, not wanting to lose contact and to
26
see if he wanted to get in touch. He assumed the first defender got hold of his letter to
RMcC and got in touch with him by way of this letter as a result.
[49]
The witness continued to visit RMcC, having been put back in touch with him via the
first defender, and had spoken to him about the farm. All he could remember was that
RMcC was a bit concerned about his money and the farm and "some solicitor he wasn't very
keen on."
[50]
I found this witness to be understated and measured in his approach. I found him to
be credible and reliable and clear in what he was saying. I accepted his evidence.
[51]
(Mrs) Dorothy Fraser has worked as support staff at Police Scotland for 28 years. She
lives at Kilbirnie, Millbuie which is next to Logie Farm. She previously lived at Tyree,
Millbuie for 25 years, which bordered Logie Farm. Physically there was a fence where the
boundary line was and a paddock field between Tyree and Logie farm. She could see Logie
farmhouse from her property. Formerly the witness shared the daily paper with the
brothers. They would see each other every day when the paper was delivered to HMcC or
RMcC, who would come over to the witnesses' house every night to drop it off. That
stopped in 2009 when the local shop shut and in around 2010/11 the witness started to see
less of the brothers.
[52]
By 2014 the witness was seeing a lot less of the brothers and in her evidence put this
down to the third defender coming to Logie Farm a lot more often. The witness described
the brothers as:
"Quite shy individuals. When we arrived there first in 1993 they were quite
reclusive. They would hide when you saw them. As I got to know them they would
come over and pass the time of day. They wanted to be your friend at the same time.
They would like to come over and chat to you as if they were needing a blether.
They were knacky men they liked to make things, do engineering.......[DMcC] was
hardly ever seen. He was in the house, I believe he was the cook. {RMcC] worked
the farm. {HMcC] was definitely more talkative than [RMcC]."
27
[53]
The witness gave evidence about a fire at Logie Farm in March 2000. The house was
completely damaged. The next day the brothers moved into a residential caravan at the
farm. The witness gave evidence that she did not know the third defender. She did the
brother's VAT for the farm and thinks she first heard of him in 2010. When he used to come
about HMcC said to her that he was looking for a plot of land and came to see if HMcC had
any land for sale. The brothers said they used to meet him at pipe band displays on a
Saturday night at Strathpeffer. Before 2010 she would see him coming to the farm one night
per week to take the brothers to accordian classes or recitals. He would also come on a
Sunday morning when HMcC was on his own as RMcC and DMcC went to car boot sales
then.
[54]
Mrs Fraser gave evidence that she did VAT returns and kept the cattle and sheep
records from shortly after the house went on fire in 2000 right up until the first defender
began to come about. RMcC had asked her to take on this role. The witness said the
brothers had a cousin down in Muir of Ord; her name was Catherine, but that was their only
relative as far as she was aware. She had heard the name "Ivan Warwick" from HMcC. He
told her he met [the first defender] on a Saturday night at pipe band displays and that he
was a minister. She did see the first defender visit occasionally and said the second
defender used to work with the cattle and the sheep at Logie Farm. This started maybe a
year after the third defender came along. Latterly this witness saw the brothers far less
frequently. She felt they kind of hid themselves away. They wouldn't ask for help with
anything whereas previously they all did sheep shearing joined together- the three farms;
the witness and her husband, Angus Ross and his wife and the brothers.
28
[55]
When the witness was asked if she was aware of why it was the brothers moved out
of the farm she gave evidence that she thought the third defender came along and basically
took over everything and put them out. They all ended up in a care home.
[56]
When asked about the brother's vulnerability to exploitation or if she was aware of
people trying to "con" the brothers in 2014 the witness replied:
"They probably were. I do remember a caravan arriving at one point with not very
nice people. They were young guys and maybe girls. I remember they used an
extension lead into [the McCulloch's] house and they weren't very nice people. My
father said to RMcC and HMcC that they shouldn't have people like that there. They
moved in and they didn't tell them to go. They were vulnerable in that way."
[57]
In cross examination by Mr Dunlop, Mrs Fraser agreed the brothers needed help on
the farm by 2014 and that things such as animal passports needed attended to. She believed
the brothers could express their wishes at that time. The brothers never raised any concerns
with her about their attorneys but they would say [the third defender] was their cousin. The
witness did question how they were related and the brothers said they thought he was
related to them but did not know. In re-examination the witness confirmed it was HMcC
who said this to her, maybe in 2010/11.
[58]
The third defender made later allegations about Mrs Dorothy Fraser that he did not
put to her. As a result I discount these. My impression of this witness was that she was
straightforward and providing an accurate and true recollection of matters. It was
noteworthy that she related the greater appearance of the third defender at the farm to a
reduction in the brother's interaction with neighbours.
[59]
(Mrs)Helen Fraser is 69, retired and lives in Inverness. She gave evidence that the
brothers were her mother's first cousins. She gave evidence that, prior to 2017, she saw the
brothers sometimes weekly, sometimes fortnightly, from about 2006/7 until 2017. When
asked to describe the brothers in 2013 she said:
29
"Hugh's mind was going then with dementia or alzheimers; Roddy's was coming
and going a little bit then; David was more shy and you had to get to know him he
was a little bit backward.... reserved."
[60]
The witness gave evidence that her friend, Murdo Mackinnon from Railig Lodge,
about half a mile away from Logie Farm, who the brothers knew, died on 21st August 2017.
So on 22
nd
August the witness went to the farm to tell them he had died. She ended up
staying as when RMcC let her in he started crying. He was shaking like a leaf
(demonstrated by the witness). He said [the third defender] had told him he would be out
of the farm next week and so did his son. The witness did not know the brothers had
granted POAs in favour of the third and first defenders at this time. She didn't find that out
until she went to the solicitors in Dingwall. She did not know who the first and third
defenders were, but had heard them mentioned by the brothers who said that they kept
turning up at the farm.
[61]
The witness was there when the SWD visited the farm and was referred to page 1299
of the pursuer's productions, which bore to be minutes from that meeting, on 15th September
2017, from the social work file. Present were the witness, her late sister Phyllis, and Les
Hood and Katrina Beattie, social workers. With reference to the minute the witness
confirmed that about a week after moving in she found out about the POAs from Ross and
Arnott (or Middleton, Ross and Arnott) solicitors in Dingwall. The solicitor told them to go
to police and they did so.
[62]
The witness was shown Page 613/4 of the pursuer's productions, a Police Concern
Report from 30th July 2017. This apparently related to RMcC contacting police to report that
someone (the name being redacted within the productions) had entered his address and
taken cash. The witness advised this was before she stayed at the farm and she had no
involvement in it. The witness denied "ripping off" the brothers or having RMcC sign
30
anything, although she agreed a letter to the lawyer, being item 6/5/57/1 of the inventory of
productions for the first and second defender, was likely to be about her. She did not think
RMcC, 87 years old at the time, would have been able to type that letter.
[63]
Mrs Fraser gave evidence of taking meals to the brothers, sometimes weekly
sometimes fortnightly, but not being allowed in the house -the only time she was allowed in
was 22 August 17 when RMcC became distressed, as already mentioned. She took the meals
as they were three old men and she just felt sorry for them; they were at the same wedding
as her, it was the wedding of one of her relations.
[64]
The witness was show page 602 of the pursuer's productions, the email by social
worker Les Hood at the conclusion of his investigation, where it talks of "evidence of RMcC
being inconsistent and unreliable" and the witness was asked if she put things in RMcC's
mind. Ms Fraser denied doing so. She said two social workers turned up. This was about
3-4 days after she moved in, the night after the first and third defender had turned up. The
social workers said they wanted to take RMcC and HMcC to the Doctors to get them
assessed. The witness phoned the Doctors and got an appointment. HMcC asked her to go
in with him. The Doctor asked him who the Prime Minister was, what month and year it
was and so on. HMcC didn't' know. RMcC went in next, but the witness just sat in the
waiting room so does not know what happened. The witness considered that in Sep 2017
both HMcC and RMcC were both unreliable in their memories.
[65]
The witness was asked to compare the health of HMcC and RMcC in 2014 and 2017.
She said they used to come to her friend Murdo Mackinnons for Sunday dinner and she
noticed HMcC getting worse with senile dementia. She was asked if, after she went to see
the solicitor in Dingwall and found out the farm had been gifted, she told the brothers. She
31
said she did and RMcC said: "We don't own the farm any more", and HMcC said "I never
signed anything". He raised his voice. The witness remembered that clearly.
[66]
In cross-examination by Mr Dunlop the witness did not think it surprising that the
first defender had never heard the brothers talk about her as she had never heard of him.
Similarly she did not think it surprising that Hugh Fraser had never heard of her as he was
related through the other side of the family. She advised she picked the solicitor in
Dingwall as that is where RMcC wanted to go. When the witness was asked how quickly
she changed the locks she said she did so that day as RMcC had told her and her sister he
was so scared- it was 22
nd
August. It was put to the witness that she changed the locks so
she had control. She denied this and said it was because the brothers were so vulnerable.
She said she did not have a key.
[67]
It was put to the witness that she didn't allow the police into the farm when she was
there. She disagreed with this. She agreed she wasn't letting the first and third defenders
access to the house. The witness was shown page 250 of the pursuer's productions. This
purported to be a police concern report from 23rd August 2017 relating to Helen Fraser's
attendance at Dingwall police office. It mentions a previous report to police by RMcC to the
effect that he had money stolen from him by two females. The witness was asked if this was
a reference to her. She replied:
"I have never stolen anything. I never went into the house. I used to pop by with a
pan of stew but I didn't want to go in as I didn't want to be pushy."
[68]
The witness was asked if it did not strike her as strange not to be invited in. She did
not want to go into the house with three men living there. She only stayed there in August
2017 as HMcC and RMcC asked her to. She agreed that RMcC could have been confused at
that time but did not think he was confused about the things he was telling her, nor did she
32
think he would make these things up. The witness was shown page 1644 of the pursuer's
productions, which were SWD Minutes of an Adult Support and Protection Initial Case
Conference held about RMcC on 2
nd
October 2018. It records:
"There were concerns raised regarding the interest of the "cousins" as they had not
had involvement with RMcC and his brothers prior to this."
It was suggested to the witness that this did not suggest that she was there every week with
a meal. The witness said if she was not at the farm she would have been with the brothers at
Murdo McKinnon's. It was put to the witness that one of the reasons RMcC left the farm
and moved to Wards Croft was because he was concerned and scared about her. The
witness denied this was the case.
[69]
In cross-examination by the third defender the witness said that she knew who he
was as she remembered him trying his key in the back door of the farm. When she was
asked why, having known the men for over 40 years had they never mentioned her name
the witness replied:
"You have never known them for 40 years, you only turned up about 12-15 years
ago."
The witness gave evidence that she first met the men at her cousin's daughters' wedding
11 years previously. The wedding was in Strathpeffer and was Gillian Chisholm who she
suggested the third defender knew.
[70]
The witness was asked, since she knew the brothers well, to detail HMcC's job. She
said he was a cattleman who worked on the farm and previously worked at Nigg, the
witness thought welding or painting. She thought RMcC kept the farm and did not know of
him having another job. She did not know of DMcC having a job.
[71]
The witness was asked if she sent a letter to the Office of the Public Guardian and
indicated that she did. She denied that she requested she be appointed a POA to the
33
brothers in the letter. The witness was asked if she was aware of the brother's new house
they were having built in Muir of Ord and she indicated she was not. It was put to the
witness:
"If RMcC was of sound mind why would he not tell you about this house?"
The witness answered:
"After all this happened in 2017 you put RMcC in one of your houses in the distillery
in Muir of Ord."
[72]
There are two possible constructions of Helen Fraser's evidence. In the first she
acted out of concern for the brothers, prompted by how RMcC presented to her when she
called at the farm and moved in with a view to assisting the brothers. In the second (this
being the version promoted by the defenders) she (and presumably her late sister) held the
brothers captive at the farm and sought to control them; to an unspecified end.
[73]
On one level resolving this dichotomy is not relevant to the case, as it does not assist
with the events near 25th June 2014 when the disposition I am concerned with was signed.
However, it does potentially assist in establishing the views of the brothers about their
POAs come 2017.
[74]
I have concluded that the evidence given by the witness was credible and reliable. I
have reached this decision for the following reasons:
a/ I had the benefit of seeing and hearing from the witness. Her demeanour in the
witness box was appropriate and careful. I believed her evidence.
b/ One of the witness' first actions, upon learning of the reason for RMcC's distress
was to report matters to the police and to seek their assistance. Similarly she
attended at a solicitor seeking clarity on the ownership of the farm. Approaching
34
them would be an odd thing to do for someone who was themselves perpetrating
some sort of scam.
c/ There was evidence that RMcC was expressing concerns about his POAs to other
people in the same time frame. Page 1644 of the pursuer's productions: "RMcC said
to Catriona Sutherland [social worker] that having the cousins [this witness and her
sister] there keeps Doug Stewart and his wife away, he was well fed and indicated he
felt safe with the women."
d/ The allegations RMcC made to this witness foreshadowed very similar allegations
that he made later to his advocacy worker, other members of the social work
department and to his solicitor as per his affidavit.
[75]
Angus Ross is a 74 year old crofter. He has been a crofter for about 20 years. He was
previously a police officer, having retired holding the rank of Chief Superintendent. He
lives at Allangrange Park, Millbuie close to Logie Farm. He can see Logie Farm from his
property. He has lived there for about 20 years and knew the brothers very well as a result.
He met them in about 1971 as he used to visit Allangrange Park at New Year and the
brothers were in the habit of visiting. When he and his wife took over the croft from his
parents in law he and his wife were "clueless" about farming. The brothers were very
helpful both by giving advice and providing practical physical help.
[76]
Moving through the years his interaction with the brothers continued. He helped the
brothers with cattle testing and with sheep shearing and dipping. They used to move cattle
together. HMcC and RMcC helped him with machinery, by lending it to him and showing
him how to weld and so on. As a result they developed a close relationship. In 2013 the
witness would see the brothers frequently, HMcC in particular. He had a field just up the
35
road and would walk up there and the witness would walk his dogs and they would
frequently meet up, and HMcC liked to talk.
[77]
Mr Ross described the brothers in the following way:
"They were different. They were very close as a family and didn't make friends
easily. There were a lot of people for whom they did work: they couldn't do enough
for people. The youngest was a recluse, HMcC was very much the boss, RMcC did
everything and had also trained as a cattleman as a youngster- he had worked on a
dairy farm. Their agricultural practices were `different' as well, so although they
knew all the theory they didn't necessarily put it into practice; they were less anxious
about complying with rigid agricultural rules."
[78]
The witness formed the view that HMcC was "the boss" as he never heard RMcC
disagree with anything HMcC asked him to do. As far as he was concerned RMcC would
always defer to his older brother. On many occasions he saw HMcC doing the shopping
while the other brothers would wait outside. If you asked RMcC a question he would just
say: "That s right". He wouldn't contradict you in any way.
[79]
The witness remembered a fire at Logie Farm which he thought was in about March
2000. Most of the farmhouse was destroyed. He invited the brothers to stay with him while
they sorted out their affairs. HMcC did so and stayed three nights. DMcC wldn't come so
RMcC stayed with him in a car at the farm until the insurance company sorted out a
caravan. They all came to the witnesses' property for meals during that time: other people
gave them food and clothes as well.
[80]
The witness knew some of the brothers' relations. He remembered that every
Saturday HMcC used to visit an aunt in Muir of Ord. Her daughter came to live with her
when she became invalided. He believed the brothers had another cousin "Gill" who
owned the Moorings Hotel. The brothers did not have many friends but had visitors who
generally came for work reasons or to ask the brothers for a favour. By 2013 the witness
36
would tend to see HMcC every day, often in Tesco. However, in respect of work on the
farm the witness said:
"By then [the third defender] had taken over largely.... we were excluded from all
these things we offered to help and it was declined....."
The witness considered the reason for this was that the third defender was running things.
The witness spoke to HMcC about this several times but HMcC said the third defender was
his cousin. The witness enquired about how they were related in different ways but did not
get any further with HMcC. On one occasion HMcC said that he enjoyed the third
defender's company and his involvement but did not think he was his cousin.
[81]
The witness knew who the third defender was. He had seen him as he used to come
round to the farm in a camper van, usually at the weekend. He had seen the van, generally
on a Saturday night but had not met the third defender. This changed around 2008 or 9
when he was asked to help to move cattle. He went there on a Sunday morning and the
third defender's family were there as well to help.
[82]
The witness was aware from then on that the third defender was involved and from
then he was gradually excluded. Prior to meeting the third defender himself he had been
aware of the first and third defenders from the brothers. He knew that every Saturday
they'd go to Strathpeffer or Beauly to see the pipe band. They spoke of meeting a minister,
an Irishman who swore and told jokes. The witness thought that was in the early or mid-
2000s. In relation to the third defender the witness subsequently learnt that he had come
looking for a house site. He also saw HMcC in the front seat of the camper van and HMcC
told him they had been to various places, Perth he thought was one, where the third
defender's son was playing accordian and HMcC said he had been to Harry Ramsden's.
37
[83]
The witness gave evidence of becoming quite anxious, as from his perspective it
looked as if the third defender was preying on these vulnerable people, being the brothers.
The witness viewed them as vulnerable because they were different. They wouldn't do
things in a regular fashion, and they didn't interact with people very well. When asked
what he meant by "preying", the witness responded:
"Grooming with a view to ingratiating themselves and taking over the farm or
property.... if I could think of any more vulnerable trio this is it."
The witness gave evidence that he was saying that both as a former policeman and as a
person. He took steps to address his anxiety. He spoke to Dorothy Fraser who worked at
Dingwall police station. She had already spoken to police who said they wouldn't take
action unless a formal complaint was made. He also tried to find out the brother's bank to
make enquiries there.
[84]
In around 2014 the witness was not having much interaction with the brothers.
Whereas before HMcC would seek him out he was now hiding. The witness noticed him to
be more unkempt and not healthy looking. He thought that a reason for Hugh hiding was
that he had told him he was forgetting people's names and the witness thought his mind
was going.
[85]
In cross-examination by Mr Dunlop it was put to the witness that he would know
who to go to if he had concerns. He agreed he would and said he did so later. He did not
know the first and third defender were POAs for the brothers. He saw the second defender
many times on the farm, working with the cattle and arranging things. He remembered
seeing her clearing out a shed to prepare it for sheep that had lambed. She arranged a
proper handling system on the farm. The witness agreed the farm needed maintenance and
that the brothers were not attending to its upkeep; but they never did worry about
38
standards. The witness said he would describe the brothers as generous. He wasn't aware
of a £1,000 gift to the vet, but he did know about a £200 gift to the vet and wouldn't be
surprised about a £1,000 gift.
[86]
In cross-examination by the third defender the witness gave evidence that they had
met, he thought, in 2008/9. He did not recall meeting again but remembered seeing the third
defender several times. The witness was not aware of HMcC asking the third defender for
help or of any reason why he would do so; the witness was not aware of any help provided.
[87]
In re-examination the witness explained that when he said in evidence to Mr Dunlop
that he had reported his concerns later he did so in 2017. He spoke to DS Ranald who he
was given to understand was leading the enquiry. He told him of his concerns. DS Ranald
said there were two sides to every story and said he was working with social services and
the Public Guardian and was completely satisfied that everything was in order.
[88]
I found Mr Ross to be a highly impressive witness. I formed the impression that he
had a genuine warmth for and fondness for the McCulloch brothers. He had a keen grasp of
the train of events. The striking evidence he gave about the brothers being "groomed" by
the third defender was not challenged by the third defender in cross-examination. It was
evidence given in a thoughtful and considered manner. I believed it. Given his background
as a police Chief Superintendent his view of the third defenders grooming deserved even
more weight. The third defender, again, made later allegations about Mr Ross that were not
put to him during cross-examination. As a result I discount these.
[89]
(Mrs)Elizabeth MacDonald is a 70 year old lady. She lived in Rhynie Park, Muir of
Ord from the early 1960s until 2007. Her croft bordered Logie Farm. As a result she knew
the brothers. She gave general evidence about visiting the farm apparently after Helen
39
Fraser had been there. It was sparse and not homely at all. I did not find her evidence
assisted me in dealing with the issues at hand.
[90]
Dr Jonathan Fletcher is a 42 year old General Medical Practitioner at Dingwall
Medical Group where the brothers were registered. He first met RMcC in 2012 and met
HMcC and DMcC around 2016. He saw them at home together in 2016 and had concerns
regarding their welfare. What had happened was memorable as Dr Fletcher was consulted
by HMcC, but he could not tell the Doctor why he had come to see him. Dr Fletcher had to
track down RMcC in the car park to find out why HMcC was there. HMcC was unkempt
and smelling of urine. The consultation prompted him to liaise with the POA and to visit
the farm to establish risk. Having done so he emailed the SWD expressing concerns. No
SWD involvement resulted from his concerns.
[91]
He was then contacted by the SWD by email on 3rd March 2017 asking for an update
(page 255 of pursuer's productions). He responded later that same day (page 1649 of
pursuer's productions). In his response he pointed out that he had previously expressed
concerns to the SWD and old age psychiatry team by email of 14th July 2016. He also
advised that HMcC lacked capacity, the brothers lacked insight and the POA was absentee.
He ended with a paragraph beginning:
"This is a social crisis waiting to happen...."
He clarified that by that he meant that HMcC and DMcC were dependent on RMcC, who
was himself elderly and frail. If RMcC became incapacitated for any reason it would be a
crisis.
[92]
On 22
nd
September 2017 Dr Fletcher referred RMcC for a psychiatric opinion (page
689 of the pursuer's productions). By that time he considered RMcC to be in the throes of a
social and forensic crisis. The police were involved. He described the brothers as having a
40
"slightly unusual lifestyle". He explained in evidence that he said this as they were three
bachelors living alone together. They were highly visible as they drove a blue Ford Ranger
motor vehicle with white stripes along the side. This was incongruous when aged 85: as a
result they stood out. Dr Fletcher made a finding at that time of RMcC having a reduced
score in his mental state examination, but also had suspicion that RMcC had a low IQ. As a
result he didn't feel able to properly assess him, so asked for specialist help by this referral.
[93]
Dr Fletcher was credible and reliable and, for the most part, speaking to medical
records made at the time.
[94]
Dr Thomas MacEwan was the next witness for the Pursuers. He is 53 and a
Consultant Old Age Psychiatrist based in Aberdeen. He has been a Consultant for 20 years.
He appeared as an expert witness, having prepared reports about the late DMcC (page 1301-
1305 of the pursuer's productions) and the late HMcC (page 1307-1312) on instructions from
the pursuers.
[95]
He explained that dementia is a syndrome characterised by a progressive
deterioration and decline in cognitive functions of the brain, including memory,
concentration, orientation, and speed. The change occurs over a period of time, usually
years. The resulting decline in social and executive functioning brings difficulties for an
individual in managing their affairs. The commonest causes of dementia are Alzheimer's
disease and vascular disease. There has to be a decline in both social and cognitive
functioning for dementia to be diagnosed.
[96]
Dr MacEwan spoke to both of his reports. He gave evidence that he perused both
HMcC's and DMcC's medical records with a view to providing his reports. He then tried to
highlight items that might be relevant to the individual's health during the period in
question.
41
[97]
In relation to DMcC he first highlighted an entry from 29th May 2012 where the
records note that DMcC was at Raigmore Hospital quite confused, thinking he had an
appointment there. Security phoned his brother to collect him. The witness explained he
found this relevant as it was evidence, probably the first evidence in the medical history, of
DMcC suffering from confusion. He did not know the nature and severity of the confusion
DMcC had on that occasion, but he felt it was certainly evidence of impairment in his health
and possibly in his mental health.
[98]
Paragraph 9 of his report on DMcC referred to a nursing record of 21st March 2014,
the original of which the witness was shown (page 772 of the pursuer's productions). The
original note said:
"Dressing of wound.....Same clothes on today, socks soiled, appears to have been
incontinent.......POA [the third defender]....didn't attend today but his wife [the
fourth defender] did. The [third defender] POA and welfare to all 3 brothers
apparently as all deemed no capacity."
Dr MacEwan did not know the context in which the reference to no capacity was made.
[99]
Paragraph 10 ref of his report again referred to original notes at page 772. The entry
for 11th April 2014 said:
"I have raised my concerns with [name] SWD under Adult Support and
Protection (S) Act 2007. He appears to be unable to self-care, this is having an
adverse effect on his health and it is due to cognitive impairment and frailty."
The witness considered it notable that the GP used the term "cognitive impairment" and the
term "frailty". At that time, in March and April of 2014 the witness gleaned from the
medical notes that DMcC was unwell and, specifically with regard to his expertise, he had a
concern that at that time DMcC had impaired cognitive function. It looked to the witness
that he was suffering from physical ailments that might impact on his mental function as
well. He took that to be notable.
42
[100]
Paragraph 11 of Dr MacEwan's report refers to an entry in social work records found
at page 798 of the pursuer's productions in which it is stated:
"[DMcC] POA document was granted on 11/03/13, registered on 10/06/13 and activated
on 22/04/14 due to having been medically assessed as having losing capacity (sic)."
[101]
Paragraph 12 of Dr MacEwan's report referred to an entry from medical records
dated 1st July 2014 (page 907) from an attendance at an out of hours clinic in the following
terms:
"Walked in at 6pm with his brother. Had a swollen leg for several weeks but
apparently much worse today, has been seeing practice nurse, unsure why he came
today, but he's a little confused."
Dr MacEwan thought it possible his confusion was due to physical illness but this could not
be separated from cognitive illness.
[102]
Paragraph 14 of Dr MacEwan's report referred to a District Nurse entry of 4th March
2015 reporting that DMcC had exposed himself inappropriately and was living in dirty,
messy conditions and was not smelling clean. The witness considered it relevant as, broadly
it was within a year of the key time period. It fitted with the witnesses' knowledge of
patients with dementia- it was an unhappy and unfortunate picture being painted by a
reading of the medical notes. This note clearly suggests he was not well and not looking
after himself very well; that fitted with the possibility that he was either suffering from
dementia or confusion due to physical illness. It fits with the time span during which he
may have been developing dementia.
[103]
By February 2017 DMcC was admitted to Raigmore hospital and had a CT brain scan
which showed brain atrophy. The witness explained this was shrinkage of the outer layers
of the brain cortex meaning loss of brain tissue. It is commonly noted in CT brain scans of
many older people and can be consistent with certain types of dementia. It was generally
43
difficult to tell when dementia started. In relation to DMcC it was possible to speculate that
a few years before he was diagnosed with dementia he may have had dementia. In the
opinion of the witness (per paragraph two of the Opinions section of his report) it was
possible that DMcC was suffering from a condition which may have rendered him
susceptible to influence on the 25th of June 2014. As he said in his report:
"the reason for stating this is that the GP had raised concern about cognitive
impairment, frailty and neglect of personal care shortly before this date and very
soon after this date he was noted to be physically unwell and `a little confused'".
[104]
The witness then moved on to give evidence about HMcC. He commenced by
noting that HMcC was referred to Old Age Psychiatry by his GP in August 2013. He
considered this relevant as, in his experience, such a referral would be made by a GP where
there is a significant suspicion about dementia. He noted that this followed on from the GP
carrying out a Mini Mental State Examination (MMSE) of HMcC at that time.
[105]
He explained that MMSE is a routine test of people with possible cognitive
impairment. It is routinely used when a patient is being assessed for dementia. The test has
been around for nearly 50 years and is a very standard, well known, and reasonably good
test of a range of cognitive functions and skills. HMcC scored 20/30; as noted in his report.
A score below 24/30 would usually be regarded as low and would often prompt
consideration of dementia. The GP referred to "vascular dementia". This is a dementia
caused by deficiencies in the blood supply to the brain. As the GP knew HMcC had
vascular disease it was a reasonable term for him to use.
[106]
Paragraph 6 of Dr MacEwan's report on HMcC refers to HMcC having been seen by
a Specialist in Old Age Psychiatry at Newcraigs Hospital. The original letter is at page 292
of the Pursuer's productions. It refers to the fact that the consultation took place on 3rd
44
October 2013 and that HMcC was accompanied by the third defender "who was interviewed
separately". The letter refers to HMcC at the consultation being:
"himself aware of problems with his memory which he feels has been worsening
over the last 10 years or so......He specifically mentioned that he forgets what people
say, he loses things and often forgets events that recently happened. He occasionally
has some word finding difficulties and forgets names of friends and relatives but
otherwise functions reasonably well around his own environment."
[107]
The specialist Doctor records that she performed an ACE III where HMcC
scored 52/100. The Doctor noted:
"He was disorientated in time, performed very poorly on tests of memory, also
impaired fluency and visiospatial skills."
Dr MacEwan explained ACE III is the Addenbrooke's Cognitive Examination. It was
developed maybe 20 years ago and is a well validated, comprehensive cognitive
examination. It is better than the MMSE as it is broader and more specific. It has been
developed by specialists in this field. 52 is a very low score. Scores below 82/100 are often
regarded as being indicative of dementia and certainly warranting of further investigation.
HMcCs score was well below that cut off. Dr MacEwan's opinion was that it was indicative
of moderate dementia. The speciality Doctor diagnosed a "mixed etiology dementia". This
term meant dementia due to mixed causes. It was often a term for a mixture of Alzheimer's
and vascular dementia- the two commonest types.
[108]
HMcC was seen by the speciality Doctor again on 21st January 2014 and was
prescribed Galantamine (aka Reminyl). This is a drug developed to treat Alzheimer's
disease. It can have modest benefits in some patients and is thought to bring about a period
of stability in the illness. He also had a CT brain scan that showed cerebral atrophy and
other conditions.
45
[109]
On 28th October 2014 the speciality Doctor saw HMcC again and noted a
deterioration. Dr MacEwan's evidence was that was the speciality Doctor's clinical
impression. The MMSE test score showed a drop to 18/30 but that was not massive,
although it was consistent with the Doctor's global impression. Dr MacEwan took from that
that between January and October 2014 HMcC's condition deteriorated. The speciality
Doctor reported that HMcC now lacked capacity. Doctor MacEwan gave evidence that
Doctors are sometimes asked to comment on someone's capacity at a given point.
Sometimes a POA document is to be activated and sometimes it needs a Doctor to give an
opinion on that.
[110]
In conclusion of examination in chief Dr MacEwan confirmed that paragraph Two of
his Opinion remained his view. This was to the effect that:
"....on the balance of probablilities, HMcCs dementia, in particular his impaired
executive function and therefore ability to reason and exercise judgement, rendered
him susceptible to influence and he was vulnerable on 25th June 2014."
[111]
In cross-examination by Mr Dunlop, Dr MacEwan confirmed he never examined
either brother. He confirmed that it was difficult to look back at the mind of someone who
has died and to make a reliably accurate assessment; it would be much better to have a face
to face assessment at the time. It was important to listen to people who saw the individual
on a day to day basis. A psychiatrist should routinely speak to family members and those
who saw the individual on a day to day basis. Dr MacEwan agreed that some people's
dementia progressed slowly and some quickly. It was not something that could be
pinpointed on a chart. It was put to Dr MacEwan that he couldn't really know if DMcC or
HMcC had capacity in June 2014. He agreed with this and said he had stated his opinion on
the balance of probabilities. He agreed it was not possible to know how HMcC was on 25th
June 2014. He agreed he was talking in terms of possibility, rather than any higher degree of
46
certainty. He agreed it would be valuable to look at what friends and family were saying
about both DMcC and HMcC at the time.
[112]
I found Dr MacEwan to be a credible and reliable witness. I found him professional
and thoughtful in his approach when giving evidence. I considered his professional
experience and qualifications to be considerable and I accepted his expert evidence, which
was not seriously challenged in its essentials.
[113]
Mr Alpin Stewart is 55 years old. He has been a qualified solicitor since 1990. He
has latterly been mostly engaged in private client work and has experience of buying and
selling property and in doing so for Attorney's. He knew the brothers as they were clients of
his for a number of years from 1998, when his firm took over the firm of Duncan and
Duncan in Dingwall, until 2013. During that time frame he was instructed in various
transactions by the brothers, usually involving the sale of small bits of ground, for example
to neighbours for additional garden. They did also sell some larger areas. These were
suitable for house plots but were not sold with planning permission, which would have
realised more money, but would have involved time and effort.
[114]
Mr Stewart usually received his instructions face to face from HMcC initially. He
would wish, as a matter of course, to confirm his instructions with the other brothers but
HMcC was usually the spokesman. He presented as more talkative and outgoing. DMcC
and RMcC would provide clear answers to direct questions but were not talkative.
Sometimes transactions were instigated by him being contacted by a solicitor instructed by
the other party, in which case he would write out to the brothers. On other occasions one of
them, usually HMcC, would call at his office to say they had agreed to do whatever and to
instruct Mr Stewart to do it. In that event usually one of the other brothers would drive him
and would wait in the car outside.
47
[115]
Mr Stewart thought he maybe did about a dozen transactions for the brothers. He
also made two different wills for HMcC. He described the brothers as typical old fashioned
bachelor farmers; they were not particularly talkative, they were dressed in typical fashion.
DMcC and RMcC were quiet. HMcC was more outgoing and knew some people Mr
Stewart's mother knew, so they had that connection. As well as in the office he would
occasionally see them in Tesco in Dingwall.
[116]
Mr Stewart stopped acting for the brothers when he received a mandate from A
Fraser and Co., Inverness, in 2013. He did not speak to the brothers, he simply complied
with the mandate. He did not know why he received the mandate. As far as he was
concerned nothing had changed in his professional relationship with the brothers. While he
was acting for them Mr Stewart did no transactions where the consideration received was
nil, there was always a consideration, even if it was small. He had no discussions with the
brothers about gifting their farm.
[117]
Mr Stewart was shown a letter from his firm to A Fraser and Co dated 7th April 2011
(1st Inventory of Productions for the Third and Fourth defenders, item 7). He confirmed he
was the author. The context was that an offer had come in from A. Fraser and Co. on
behalf of the third and fourth defenders for the purchase of a field of the brothers' farm,
adjacent to Inchbroom, for the sum of £100. The sequence was: he received the offer from A.
Fraser and Co., he wrote out to the brothers about it and HMcC attended the office, having
been brought by the third defender.
[118]
Mr Stewart had discussions with HMcC about the offer. He advised that proceeding
would leave the brothers out of pocket, as they would need to pay the legal fees and outlays
for the transaction, which would exceed the £100 offered. He told HMcC it would be against
48
his interests. HMcC suggested that the brothers were to receive some form of care going
forward, that the third and fourth defenders would look after them as they got older. Mr
Stewart advised HMcC that, in his experience, such an arrangement does not usually work
out well and often falls down when faced with reality. Following this meeting he wrote the
letter referred to above, rejecting the offer.
[119]
Thereafter HMcC attended at his office again. He was brought by the first defender.
HMcC said the third and fourth defenders would pay £100 for the land and would also meet
the brothers' legal expenses. As a result the witness wrote back to A. Fraser and Co. in
those terms (1st Inventory of Productions for the Third and Fourth defenders, item 8). That
letter referred to the witness requiring to confirm these instructions with RMcC and DMcC.
The witness gave evidence that, because of the nature of the transaction he was more
anxious than usual to ensure all of the brothers agreed, so he arranged to speak to all of
them. His normal pattern of dealing with the brothers was with HMcC as the spokesperson.
In an ordinary transaction, where the price reflected the value more or less, it was Mr
Stewart's view that he could proceed largely on the basis of HMcCs instructions, meeting
RMcC and DMcC just to get the documents signed. Mr Stewart was generally willing to
proceed on this basis. However, on this occasion, as the price in no way reflected the value
of the ground he was anxious to ensure that all of the brothers were in agreement. He met
with each of them and they did agree so he wrote on 10th June 2011 confirming the position
(1st Inventory of Productions for the Third and Fourth defenders, item 9).
[120]
The witness was shown the 2014 disposition by the brothers in favour of the
defenders (page 1 of the Pursuer's Inventory), which he had not seen before. He gave
evidence that the effect of the transfer being for "love, favour and affection" meant a transfer
for no value. Most often this was done to a close family member. The implication in such a
49
transfer is the property is being transferred for no value because of a wish the individual has
to benefit the recipient; in usual course the disposition would state a price. A deed for no
consideration is normally exempt from tax and so the deed should reflect what is actually
happening or that could be fraud. Other words, such as: "for certain good and onerous
causes" could be used and they would imply that there was something going on in the
background.
[121]
The witness was shown page 47 of the Pursuer's productions, part of a Mental
Health Officer's report to accompany an application for guardianship re DMcC, and a
section which reads:
"Mr Alpin Stewart was approached by concerned neighbours of the ...brothers after
Mr A Fraser took over as solicitor. Neighbours of the McC brothers were concerned
about the intentions of [the third defender] in the McC brothers' affairs. These
concerns were initiated by an unusual level of interest taken by [the third defender]
in respect of [DMcC] and his siblings, this involvement/interest by [the third
defender] was not evident before 2013."
Mr Stewart agreed this was accurate. Mrs Dorothy Fraser raised concerns with him when he
was meeting with her on an unrelated matter. Mr Stewart thought she had been quite good
to the brothers in the past- that was his impression from speaking to the brothers.
[122]
In cross-examination by Mr Dunlop the witness agreed he prepared a will for HMcC
(page 1180 of the Pursuer's productions). This was the second of two wills he prepared for
HMcC over the course of acting for him. He did not know who either of the two ladies
being left a sum of money were. He knew the brothers had relatives, but none who were
particularly close. When he acted in the £100 land sale in 2011 he was content that there
were no issues re the capacity of any of the brothers.
[123]
In relation to the £100 sale it was correct to say that the witness was forthright in
telling the brothers that the transaction was not in their interests, as it was for under value.
50
It was correct to say that the brothers were nonetheless clear that they wanted to go ahead.
When it was put to the witness that the brothers moved to A. Fraser as they were not happy
with his firm, as they felt they were being told what to do, the witness said that was
certainly not something expressed to him. He confirmed he could not recall ever having
visited Logie Farm and that he had no farming background. He confirmed that a solicitor in
the predecessor firm had criminal proceedings taken against him regarding alleged
embezzlement.
[124]
In cross-examination by the third defender the witness gave evidence he was not
aware of any relationship that the third defender had with the brothers until the transaction
for £100 in 2011. He was not aware of the death of the third and fourth defender's son, nor
of their plans to leave the mainland. It was put to him that the meeting which the third
defender took HMcC to at his office was prior to the offer for land at £100 being received.
Mr Stewart gave evidence that was not his recollection. It was put to him that the
ownership of the farm as between HMcC and his father was what was discussed. The
witness said he had checked his note of the meeting and had noted that it was the price of
the land that was discussed.
[125]
I found Mr Alpin Stewart's evidence to be credible and reliable. Everything about
him in the witness box impressed.
[126]
Mr Alasdair Fraser was the next witness for the pursuers. He is 59 and has been a
conveyancing solicitor for 35 years. He has experience of preparing POAs and acting for
POAs in the sale of property. He knew the brothers as they were clients of his. They
became clients in 2011 or 12. Around 2012, he thought, HMcC attended at his office to
instruct him. The other brothers attended later, but within the space of a year. The brothers
came to instruct him as the third defender said to him that the brothers were looking for a
51
property lawyer and had expressed some dissatisfaction with their previous agent, Alpin
Stewart, and asked him if he would be interested in assisting, which he was. The third
defender brought HMcC to meet him. Mr Fraser knew the third defender as he was a
previous client and had been a client since 2004/5.
[127]
Mr Fraser thought he discussed a POA at his first meeting with HMcC. They did not
discuss Alpin Stewart. The third defender was in the meeting room initially but was asked
to leave when it came to confirming what HMcC wanted to do; he would go back to
reception at that point. Page 4a-4g of the pursuer's productions was the POA prepared by
the witness for HMcC. The handwriting on the certificate at page 4f and g was his
secretary's, he thought. The witness completed the declaration on page 4g, certifying that
HMcC understood the nature and extent of the POA, from his own knowledge of HMcC,
who he had known for 7-8 months at least at that point.
[128]
Mr Fraser disagreed with the proposition that RMcC would always agree with
HMcC. He agreed that DMcC was something of a recluse. He gave evidence that he also
knew the first and second defender before the first defender was appointed as POA to the
brothers, as he had done some legal work for him and the second defender. On being asked
who suggested the first and third defender as Attorneys the witness indicated he thought
the third defender would have said "this is who the brothers want".
[129]
Mr Fraser gave evidence that he witnessed each of the brothers POAs. He was
directed to his apparent signature on the different documents at pages 8 and 10 and 10g. It
was suggested to him that these seemed to look very different. Mr Fraser gave evidence that
his signature varies. He explained that this had previously given him problems with his
bank. He indicated it could depend if he was in a hurry or sometimes he just chose to vary
his signature. He gave evidence that he met RMcC and DMcC at least twice before they
52
signed their POAs. They were brought to his office by the third defender. He met the
brothers together with the third defender, but when it came to any signing he was asked to
leave.
[130]
The disposition transferring the farm to the defenders was prepared by Mr Fraser.
The third defender mentioned that the brothers wished to consult him regarding transfer of
the farm to the POAs and their respective spouses, to which he responded that he would
need to go and see them. He visited the brothers at Logie Farm specifically with that in
mind. Once he left the meeting he drafted the disposition and sent it to them, knowing that
their mail was in fact received by the POAs. He later went to the farm to have the
disposition signed by all of the brothers and he witnessed it.
[131]
Mr Fraser was directed to a file note made by him about the matter (page 1294 of the
pursuer's productions). It is dated 26/08/13 and says:
"Alasdair met with Doug and Ivan noting that the brothers wish me to make Wills
and also that the brothers and (sic) contemplating transferring their farm as a until
(sic) to Douglas and Ivan and their respective families. We are aware that this does
not look particularly good but we are aware of the circumstances of which the
brothers live and the fact that they have no relatives whomsoever who have any
inserts (sic) in them. We feel the matter will be resolved if I pay a visit to the brothers
to visit them on their own to clarify matters."
After being directed to the note Mr Fraser confirmed the initial meeting had been with both
the first and third defenders.
[132]
The witness was asked what he meant when he wrote "this does not look
particularly good". He answered that where any client transfers property for no
consideration one had to be very careful- the client has to be very clear as there would be a
lot of scope for abuse. In relation to this proposed transfer to a close friend and Attorney the
witness felt he "had to do a bit of checking" before he could carry out the brothers' wishes.
Reference in the note to "we" meant him and the Attorneys. Reference in the note to "the
53
circumstances" meant the brothers were old, lonely and very few people had genuine
concern about them. When the witness was asked how he knew the brothers had no
relatives he replied he had heard from the third defender that no one was paying them
particular attention and he gleaned it from that. "Whomsoever" meant anyone showing a
real interest: if they had distant relatives they were not interested, to the witnesses
knowledge.
[133]
Mr Fraser was asked when he visited the brothers. He said he did go to the farm, he
thought it was early the next year. He should have done another file note and hadn't. He
had one more, if not two more visits and also tended to visit on an annual basis. He
remembered this specific meeting. The witness met the third defender before the meeting
and he took him to the house. The third defender was not in the living room for the actual
meeting, the witness was alone with the brothers. He normally met the third defender prior
to going to Logie Farm as he did not like going there without him and the third defender
normally accompanied him there. That was the case on each of his visits.
[134]
Mr Fraser gave evidence that the farm was 30-40 acres and had a farm steading. He
gave evidence that he discussed the financial ramifications of gifting this property with the
brothers. When he was asked what was said he gave evidence that he had a standard way
of words for dealing with clients in this type of situation. He started by asking them if they
did want to do this. He went on to ask if the third defender had "put a gun" to your head.
He explained that they could be left homeless; this was all part of his routine in these type of
situations. He was asked what was in this transaction for the brothers. He responded that
they wanted to give their property to two men and two women, one couple in particular
who they loved. They appreciated what the second defender did for them on the farm,
although they resented the fact a woman was doing it. He agreed the POAs were
54
operational at this time but said he would not have let the transaction go through if the
Attorneys had signed the disposition: it had to be the brothers of their own free will or he
wasn't going to do it.
[135]
Page 1292 of the pursuer's productions was a note from Mr Fraser's file. He was
directing a member of his staff to look out the full names and addresses of the defenders
from previous files. Page 1257 was a draft fee note. The witness gave evidence that the
handwriting thereon was an instruction by him to his staff to email the third defender for
the value of the farm so that the correct registration dues could be calculated. He was
asking him (and not the brothers) because it would be quick. When asked why that would
be quicker than picking up the phone to the brothers the witness said they were difficult to
contact by phone and they "might have got confused if I phoned them out of the blue." He
said he should have had all of this information ready before he prepared the disposition and
a call like that would be the kind of thing they would get anxious about. When asked if the
brothers were prone to getting confused Mr Fraser said he would not say that, but he
thought they would certainly doubt his competence and it would not look good on his part.
The witness agreed there were no other file notes of his meetings with the brothers or record
of what they wanted. He said he was busy and knew now what such notes would have
said.
[136]
In relation to the earlier transfer of land to the third and fourth defender Mr Fraser
was asked if it had any relevance. He gave evidence that the earlier transaction made him
realise the brothers were very keen to convey the land to the third and fourth defenders and
had given clear instructions to a different solicitor to convey land to them previously, which
he felt was of assistance in his actings. The witness was not aware of any arrangement
whereby the third and fourth defenders would look after the brothers, but thought the
55
transfer was in relation to a general friendship between them and that the brothers had
asked them to remain in the locality when they were thinking of going to Lewis: this was
information given to him by the third defender.
[137]
Mr Fraser agreed he was acting for both the disponers and disponees in relation to
the transfer. He pointed out that both were previous clients, but agreed that there should
have been a conflict of interest letter sent to all parties stating this and that they were free to
instruct another solicitor. He accepted there was the potential for conflict of interest and
said:
"if you want to go completely by the book you would send them to another solicitor
but I thought that was a waste of time and money."
He clarified he meant if he had been going completely by the chapter and verse of the law,
rather than the spirit of it if he felt there was a conflict, which he didn't, then one could get
another solicitor involved.
[138]
Mr Fraser was asked about the brothers saying they wanted their cousin Hugh Fraser
to have the farm. He replied:
"I knew there was a cousin....if someone from a shop in Muir of Ord walked up and
helped the brothers they would be offered a bit of the farm...."
He was shown a letter to HMcCs GP from old age psychiatry confirming his diagnosis of
dementia and asked if he was aware of this. He could not remember being aware of it. He
was asked if he was aware of the Doctor deeming HMcC to have no capacity. He said: "I
think later in the year [the third defender] would have told me his dementia got a lot worse,
which I think was after signing the disposition." He was shown page 772 of the pursuer's
productions (medical notes) and an entry from 21st March 14 referring to all three brothers
"apparently all deemed no capacity". He replied he did not think the author knew the
56
situation particularly well as the brothers certainly had capacity at that stage; they were
messy and untidy and didn't like social workers prying around.
[139]
Mr Fraser was shown page 1420 of the pursuer's productions. This was an email
dated 30th May 2017 from the third defender to him. He was asked about the import of the
email. He gave evidence that it related to an investment property the brothers bought
together at 11 Wards Croft, Muir of Ord. The email related to a plan to get DMcCs name off
the title of the property which had been purchased in 2015 after they had gifted away the
farm in the joint names of the brothers. He gave evidence that the scenario that had arisen
was that if an individual has certain assets the social work department expect them to pay
for their own care home. If you don't have assets you may receive funding depending on
how the social work department view matters- they will scrutinise any transaction carefully.
He agreed the gift of the farm may thus have been prejudicial.
[140]
Mr Fraser was directed to his email reply to the third defender. In that he had
written:
"....there may be an issue with changing [DMcC's] will. [DMcC] did sign one before
as we felt that he had capacity- just!"
He was asked who the "we" in the email referred to. He gave evidence that it was him and
the third defender. He used the exclamation mark to emphasise the point that you have to
be very careful with issues of capacity. He was not worried DMcC had no capacity in 2014,
although he agreed the will he referred to was signed on 25th June 2014 (page 1183 of the
pursuer's productions).
[141]
Mr Fraser knew the farm gifted to the defenders has since been sold- he acted in the
sale. He did not agree the third defender spoke for the brothers, in his view the third
defender helped them. He agreed there was nothing in his file saying what the brothers
57
wanted regarding their farm. He said: "that's my negligence". He agreed there were no file
notes about his dealings for the brothers, other than the one he had been referred to. He
gave evidence that was his mistake.
[142]
Page 1177 of the pursuer's productions was put to the witness (an affidavit by
HMcC). He was asked about paragraph 4 thereof where HMcC depones:
"[the third defender] and [the first defender] changed our solicitor to Alasdair
Fraser....I did not ask to change solicitors."
Mr Fraser did not agree with this and thought it was a consensual decision. Paragraph 5 of
the affidavit was put to the witness who disagreed with it. He said RMcC had been in his
office at least once and the third defender was always asked to leave when documents were
signed. He disagreed with paragraphs 20 and 21. In relation to paragraph 23, where RMcC
depones that the third defender asked him to sign something at Logie Farm the witness
indicated the disposition was signed at Logie Farm, but that he met with the third defender
there beforehand but that the third defender was not in the room when he asked the
brothers to sign the disposition.
[143]
In cross-examination by Mr Dunlop, Alasdair Fraser did not agree that the brothers'
minds in June 2014 were such that they could be taken advantage of: in relation to RMcC in
particular he would have said "No". He would think about a thing and if he was unhappy
he would make his point. There was nothing about the brother's demeanour when the
disposition was signed that made him think they were frightened. They were all sitting
across from him side by side. The fact that he had acted for the defenders previously had no
bearing on the advice he gave the brothers. The fact that he had not issued a letter about
conflict of interest had no bearing: the brothers were determined about what they wanted to
do.
58
[144]
Mr Fraser gave evidence that the brothers wanted Attorneys as they were becoming
more infirm and needed someone to deal with their affairs; to liaise with HMRC, their
accountant and so on. They wanted the first and third defender because of their friendship.
The only other individual who had been thought of was him, as he sometimes offered to do
this for clients. He did not consider the brothers were susceptible to suggestion in 2013/14.
He said all three of them were determined. He was not aware of any force or fear and he
went over the disposition with them before signing to check their wishes about it. There
was time for them to reflect as he had the initial meeting with them at the farm then drafted
the disposition, posted it to them then had the final meeting to sign. He was also visiting the
brothers once a year socially.
[145]
Mr Fraser was asked if he could think of an example of the brothers being told to do
something they didn't want to do. He remembered being asked to check about someone
they thought was farming their land, but when he checked the title deed he found they had
sold that land to someone else. Mr Fraser gave evidence the brothers knew the second
defender and really liked her. He gave evidence that the brothers never discussed the
consequences of not owning the farm or nursing home fees with him. He confirmed he
drafted wills in 2014 and 2017 and what was in the wills was what the testator wanted. It
was Mr Fraser's evidence that the brothers had a strong degree of proprietorship- they
would not willingly part with money and would be very cautious about giving land or
money to anyone. Mr Fraser purchased the property in Muir of Ord for the brothers. The
Attorneys instructed him to do that. He purchased the property in Poolewe but does not
know if it were ever sold.
59
[146]
In cross-examination by the third defender Mr Fraser gave evidence that the brothers
grew potatoes and sometimes corn on the farm- he got potatoes any time he visited. The
brothers were happy to see him and talked about the farm and any local news.
[147]
In re-examination when it was put to Mr Fraser that he had said the brothers could
have been taken advantage of he said that he felt if someone had been trying to hoodwink
them two of them might fall for it but not all three. There was "enough sense" in HMcC and
RMcC not to give away assets they wanted to keep. He did not think RMcC would just go
along with HMcC. He knew mail was received by the third defender at the PO Box.
[148]
Mr Fraser's evidence was important to the case. I found it startling in several
respects. Firstly, his evidence about what, to my naked eye, were considerable differences in
his signature from one document to the other was odd. The very point of a signature is
surely that it is supposed to be verification that the named individual has signed something.
For a solicitor to seek to vary their signature did not ring true to me.
[149]
Secondly, the starting point for the gift transaction was a meeting between Mr Fraser
and the first and third defenders, notably in the absence of the brothers. The file note of the
meeting contains the phrase "we are aware this does not look particularly good", signifying
that, at the outset, Mr Fraser was "live" to the optics of the situation. Nevertheless he did
not complete any further file notes, for instance a note in which he detailed the terms of his
meeting with the brothers. He does not appear to have followed up any meeting with a
letter, perhaps containing a written record of any cautionary advice regarding matters to the
brothers; which might have been better sent as an individual letter to each. On close
examination of his evidence he does not appear to have given any cautionary advice.
[150]
Thirdly, Mr Fraser appears to have taken instructions about the value of the farm
needed to calculate registration dues and thus to progress the transaction from the third
60
defender solely. An enquiry of that nature to the brothers would have been another
opportunity to check their wishes and to focus in their minds the value of the asset they
were proposing to gift.
[151]
Fourthly, Mr Fraser accepts he was acting on behalf of all three disponers and all
four disponees in the transaction. He conceded this was not "obeying the letter of the law",
but sought to minimise the importance of this. Again, a letter to the brothers outlining to
them the conflict of interest that their solicitor had may have caused them to further reflect
on their apparent instructions. Such a letter was never sent.
[152]
Fifthly, it seemed odd to me that no stark warnings appear to have been
administered to the brothers by Mr Fraser in relation to the possible future financial and/or
practical impact of what they were apparently proposing. This contrasted with the evidence
of Alpin Stewart, solicitor, in relation to the £100 transaction, where he was at pains to
explain that what was being proposed was contrary to the brothers' interests, and the later
evidence of Patricia Black, solicitor, who spoke of tax and other implications of transfers.
[153]
All of these startling aspects affected my view of Mr Fraser's credibility and
reliability and the reliance able to be placed on his evidence.
[154]
Dr Miles Mack is a general medical practitioner and has been since September 1993.
He is a partner at Dingwall Medical Practice where the brothers were registered as patients.
Much of his evidence was under reference to the computer medical records. He was
referred to page 772 of the pursuers' productions which he confirmed was an extract of a
computer record from Dingwall Medical Practice. He was referred to an entry about D McC
dated 11 April 2014. He confirmed it was an entry made by him which said (of D McC):
"He appears to be unable to self care, this is having an adverse effect on his health
and it is due to cognitive impairment and frailty. Duty SW will investigate."
61
[155]
The second entry for 11 April 2014 was made by Kelly Mowat, a practice nurse
within Dingwall Medical Practice. Dr Mack spoke to the entry. It noted her concern about
D McC's ability to care for himself. Dr Mack gave evidence that his note referring to
"cognitive impairment and frailty" came about from a previous notification in the records
about difficulties with DMcC's memory, made by Kelly Mowat and that entry was dated
21 March 2014. It said:
"21.03.2014 dressing of wound. Leg actually improved with viscopaste.... same
clothes on today, socks soiled, appears to have been incontinent. ... power of
attorney [the third defender] didn't attend today but his wife [the fourth defender]
did. [the third defender] POA and welfare to all three brothers apparently as all
deemed no capacity...."
[156]
Dr Mack was referred to page 910 of the pursuers' productions. He gave evidence
that this was a reference he made to the vascular surgery department at Raigmore Hospital
for an outpatient appointment for DMcC. It referred, amongst other things, to DMcC's
"poor social circumstances". Dr Mack gave evidence that by this he was referring to his
concerns regarding DMcC's difficulty in managing and the three men living together with
significant needs.
[157]
Dr Mack confirmed that HMcC was also a patient at the practice. He was referred to
page 1063 of the pursuers' productions. He confirmed that this was a letter that had arrived
at Dingwall Medical Practice in respect of HMcC from Dr Wendy Kerr, Speciality Doctor in
the Older Adult Team at Newcraigs Hospital, Inverness. It was dated 21 January 2014 and
referred to HMcC attending at the Dingwall clinic on that same date. He was accompanied
by the third defender. It indicated:
"His CT scan showed evidence of small vessel disease, ischaemia and vascular
calcification. Also of significance was cerebral atrophy, particularly marked at the
medial temporal lobes. This would confirm our suspicion that he has a diagnosis of
dementia mixed type... and I discussed this diagnosis with H McC and [the third
defender] today."
62
Dr Mack confirmed that this was a letter to the practice diagnosing HMcC with dementia
(which had previously been suspected) as at 21 January 2014.
[158]
Dr Mack was shown page 1059 of the pursuers' productions. He confirmed that it
was a copy of an email from him to the specialist in old age psychiatry about HMcC dated
31 January 2014. He wished to have an ECG to check HMcC's heart before he was started on
reminyl (which he gave evidence was a medication used to treat dementia). Dr Mack was
shown page 1053 of the pursuers' productions. He confirmed that was a further letter from
the speciality doctor in old age psychiatry to him dated 29 April 2014. It said:
"I reviewed [HMcC] at the Dingwall clinic... accompanied by his friend [the third
defender]. [The third defender] has no specific concerns and described how the three
brothers [HMcC, R McC and D McC] function together as one unit...."
Dr Mack agreed that that appeared to be information provided to the speciality doctor by
the third defender.
[159]
Similarly, Dr Mack received the letter at page 1047 but this time on 28 October 2014.
It refers, amongst other things, to:
"Unfortunately the situation has deteriorated since I last saw him in April... He
himself is quite contented with no particular complaints but I was able to talk to [the
third defender] in private who told me of his increasing concerns about [HMcC] and
his brothers safety and vulnerability at home. ...there has been [sic] increasing
concerns about the three brothers' vulnerability to exploitation, friends constantly
having to be on their guard from people trying to con them out of money and to buy
pieces of equipment and apparently people often visit the farm with this specific
aim."
Dr Mack again considered that the information in the letter was mostly coming from the
third defender. He confirmed the letter also said that HMcC no longer had capacity.
Dr Mack gave evidence that that changed the ability of the patient to make informed
decisions about their own care and would inform the way that the GP obtained consent to
any medical treatment.
63
[160]
In cross-examination Dr Mack confirmed that the Addenbrooke's Cognitive
Examination has now taken over in specialised clinics from the Mini Mental State
Examination. He gave evidence that the speed in which a mind can go from being of normal
fortitude to weak depends on the nature of the disability. With Alzheimer's type dementia
it comes on slowly and progresses in that manner. A vascular type event may happen much
faster. It could be weeks or years but more commonly months or years. A poor memory, in
his evidence, makes people more vulnerable to exploitation as, if it is known to others, it
provides a "way out" for them if challenged. He gave evidence that whilst dementia affects
memory that is just the commonest presenting symptom. Dementia is a global reducer of
functioning. If an individual with dementia makes a decision they could forget making it
later.
[161]
RMcC is the only brother who remained alive at the commencement of the proof. I
previously presided over a commission to take his evidence at Aultbea Care Home on
13 February 2019. The report of the commission is in process. In addition to that evidence,
an affidavit was lodged (page 1177 of the pursuers' productions), being an affidavit obtained
from RMcC on 30 April 2019. Given RMcC's diagnosis of dementia, the way that he
presented at the commission, and the fact that some parts of his affidavit, for example the
suggestion that the floor boards were removed by the third defender from Logie Farm, are
not supported by other evidence I conclude that much of his evidence at commission and in
his affidavit is unreliable. However, I do feel able to place greater reliance on the
information he was providing and views he was giving to other people earlier, for example
to Helen Fraser in the summer of 2017.
[162]
That closed the pursuers' proof.
64
FIRST AND SECOND DEFENDER'S PROOF
[163]
The first witness for the first and second defenders was the second defender herself,
Mrs Jocelyn Warwick. She is 58 years old and married to the first defender, the Reverend
Ivan Warwick, since 1989. They have three grown up daughters. Mrs Warwick is a farm
livestock monitor for the RSPCA. She has a background in agriculture, holding a BSc in
agriculture and a post-graduate diploma in agriculture. She grew up on a family farm and
has owned her own small croft near Dingwall since 1999.
[164]
Mrs Warwick gave evidence that she met the third and fourth defenders after her
husband met the third defender in a motorbike shop in Inverness in approximately 2002.
They became good friends, as the third and fourth defenders' youngest son was ages with
their daughters at the time. The children would play together and they saw a lot of each
other. Mrs Warwick was aware of the third and fourth defenders knowing brothers who
farmed (the McCs). In 2003 the third and fourth defenders' eldest son was killed in a
motorcycle accident. At the time of his death, the third and fourth defender's youngest son
was staying overnight with the Warwicks and Mrs Warwick described this loss as "a fairly
horrific experience for them".
[165]
After that tragedy, she was aware that the third and fourth defenders started to make
plans to convert a steading on the fourth defender's family croft in Lewis. They began to
travel there and to contemplate moving. She understood that they did not move as HMcC
asked them not to and offered to let them build a house on Logie Farm.
[166]
Mrs Warwick recollects first meeting HMcC in Tesco in Dingwall. He was already
talking to the third and fourth defender and she was introduced to him. They spent 5 or 10
minutes speaking. She and her husband were living in Paisley at the time but had come
back to do some work to the garden of their house, which they had just built at the time. She
65
first met RMcC in March 2013 when the third defender phoned to ask her advice about
abortion in cattle. After she provided her opinion on the telephone the third defender asked
her to go to Logie Farm and do a barn assessment. She went there sometime in March 2013
and walked round the farm with RMcC and HMcC. It was just her and them and she was
on the farm for about 2 hours.
[167]
Mrs Warwick's impression of the farm was that it was extremely untidy. There was
broken farm machinery everywhere. There was a large hole where the brothers were
burying dead animals, which was not permitted. The animal passports were in a mess. She
gave evidence about production 6/3/17 onwards which were various photographs that she
took on the farm with a view to matching up cattle and tags. Her impression at that time
was that HMcC was very chatty and slightly embarrassed at the condition of the farm.
RMcC was quiet and more interested in the sheep. Physically, she thought that HMcC was
quite frail. He walked with a stick. RMcC was very fit and very knowledgeable about the
cattle on the farm. As she got to know RMcC better he came out of his shell. There was
nothing about her meeting with the McCs in March 2013 that made her concerned about
their minds.
[168]
Mrs Warwick gave evidence of returning to the farm about 10 days later. In the
meantime she had spoken to the third defender about the issues there. One of these was a
lot of potential hazards on the farm such as black plastic. The third defender arranged for
his daughter and her husband to tidy that up. HMcC and RMcC also decided they wanted
to sell some animals. They needed to be tested first and she was asked to get them ready for
sale. It was the third defender who asked her to provide this help. Mrs Warwick had not
yet met DMcC. She did not do so until about June 2013. She had seen him in the distance
66
but met him when she was emptying feed buckets at the back door of the house with RMcC
and he came out to put something in the bin. She spoke to him at that point.
[169]
Mrs Warwick did not know the background as to why her husband was appointed
POA to the brothers. She knew that there were concerns about how they were coping. She
knew that her husband had been POA for his mother in the past and had been asked to be
POA to certain members of his congregation so she was not that surprised. He did not
discuss his appointment as POA to the brothers with her. This did not surprise her as he
kept a lot of things about his work confidential.
[170]
Mrs Warwick's impression of DMcC was that he was very, very shy. He gave pretty
much monosyllabic answers to many questions that she asked him. He was much smaller
physically than the other brothers and not as well kempt. He was clearly uncomfortable in
meeting new people.
[171]
After March 2013 it took until May 2013 to sell the cattle as there were various things
to be done with them. During that period Mrs Warwick used to be at Logie Farm weekly.
She gave evidence about the various things that she was doing there. HMcC visited her and
her husband in Paisley. He went to see a comedian with the third and fourth defenders.
Mrs Warwick did not believe that the brothers could be talked into doing things that they
didn't want to do. She gave an example of them refusing her advice when she saw RMcC
and HMcC sitting on the back of farm machinery to provide ballast. She expressed concern
that HMcC could be sucked into the machinery and lose an arm, but the brothers ignored
this.
[172]
Mrs Warwick gave evidence that she and her husband moved back to Strathpeffer
from Paisley in August 2014. She continued to help at Logie Farm. Production 56 was her
diary which she referred to and which noted her attendance or her doing things for the
67
brothers on various occasions. She found it very surprising that the brothers later stated that
they did not know who she was, as in 2014 she felt that she did more at their croft than at
her own. In July 2015 she was strimming the back garden at the farm when someone
arrived who said they were a cousin. She now knows that this was Hugh Fraser. The
brothers had not mentioned him to her but they would quite often say that people were a
cousin. For example, they had told her that Dorothy Fraser, their neighbour, was a cousin.
[173]
The brothers continued to do things for themselves in 2014. For example they sold
animals at the mart. They used to go to the fiddle and accordion club and to the bagpipes.
Mrs Warwick gave evidence that HMcC tended to be keen to give cash if somebody did
something for him. RMcC did not tend to carry money. She gave an example of an occasion
at the mart when a buyer asked HMcC for "luck money". HMcC pulled out a roll of cash
and gave the buyer £300 and Mrs Warwick £1,000 in £50 notes. This was all very excessive.
Mrs Warwick tried to give the money back but HMcC refused. She asked the third defender
what to do with it and he said that she should put in an invoice in relation to it. On another
occasion HMcC tried to give her youngest daughter £200 for two hours work that she had
done at the farm cleaning out the shed. She gave this back to RMcC. On several occasions
HMcC asked her if she would like to farm the farm or if her daughter would. Her daughter
was studying agriculture. She laughed this off. HMcC was quite concerned that it should
stay as a farm and RMcC had said to her that he wanted to stay there until he died. She
never encouraged the brothers to give her the farm. She was not aware of any other
defender having done so. She did not think that the brothers could have been persuaded to
give the farm to somebody in June 2014 that they did not want to. She considered that
HMcC was getting quite forgetful at that point but still had firm views. RMcC definitely did
68
not have a weak mind and she could not speak for DMcC as she had so few dealings with
him.
[174]
Mrs Warwick did not find out that the farm had been disponed to her until her
husband told her in November 2014. She was very shocked as she did not really consider
that she knew the brothers that well or had done anything for them that would make them
want to dispone the farm to her. She had a stormy argument with her husband as she felt
that they should not accept the gift. She phoned Alasdair Fraser, the solicitor, in December
and asked if it was possible to change the disposition and he said it would be quite offensive
to the brothers to do that.
[175]
In cross-examination by the third defender, Mrs Warwick gave evidence that the
third defender's family relationship with the brothers was close. RMcC was always
delighted to see the fourth defender and "blossomed" when she was there. HMcC got on
very well with Iain Stewart and was very proud of him and talked about him a lot.
[176]
In cross-examination by Mr MacLeod, Mrs Warwick gave evidence that she did not
know that her husband and the third defender had spoken to Alasdair Fraser about what the
brothers wanted to do with the farm. She did not know in advance that her husband was
going to be involved with the brothers as their power of attorney. In her view, HMcC was
the boss in relation to some things but on the farm RMcC and HMcC bounced off each other
equally. She accepted that RMcC would often agree with HMcC. She accepted that the
brothers did not appear to have friends who called round to see them. She did not know
that HMcC had a diagnosis of dementia in 2014. She did not know that in October 2014 he
was accessed as having lost capacity. When she asked the brothers why they had gifted the
farm to her and her husband they said that it had to go to someone. The reason that she had
a row with her husband about it was that she felt it put them at risk of people locally
69
gossiping and that receiving half of the farm felt like a huge thing. Mrs Warwick agreed that
none of the £390,000 that the farm had been sold for had been paid back to the brothers. She
gave evidence that she had paid her share of the proceeds to her husband.
[177]
My view of Mrs Warwick was that she was a decent lady who gave a credible and
reliable account of most events. I noted carefully Mrs Warwick's view that she did not want
to accept the gift and that she had paid her share of it to her husband.
[178]
The Reverend Ivan Warwick is 67. He has lived at his current home in Strathpeffer
since the house was built in 2010 or 2011. He is a retired Church of Scotland minister, a
position he held for 38 years. He was latterly suspended on account of the raising of this
action. He first met the third defender as they happened to be in the same motorcycle shop
in Inverness at the same time in 2001. They became friends and spent quite a bit of time
together in 2002 and 2003, particularly when they would go for motorcycle rides together.
Within a couple of months of meeting the third defender he met the fourth defender. In the
early days they would see each other once a week or so. He conducted the funeral when the
third and fourth defenders lost their eldest son. The brothers attended but he did not meet
them at that time. He thinks he met them properly in around 2008. He was aware that the
third and fourth defenders took HMcC places as he was the most sociable of the brothers
and liked an outing.
[179]
The Reverend Warwick was aware that Iain Stewart changed high schools which
meant that he had to be driven to school. The fourth defender did not drive and so when
the third defender sustained an injury that meant he could not drive, RMcC stepped in. He
transported Iain to and from school for some time. The brothers were very supportive of
Iain generally, with HMcC in particular going to hear him play. The brothers had a photo of
the Stewart children in their home and a very prominent photo of Iain Stewart with his
70
accordion. There was also a photograph of Rev Warwick with the Prince of Wales following
a service he had conducted at a church which had been attended by the Prince.
[180]
The Reverend Warwick recalled meeting the brothers first in around 2008 when Iain
Stewart was being transported to Fortrose Academy by RMcC. He met HMcC first when he
came into the third and fourth defender's home when he was visiting. He met RMcC
shortly thereafter but did not recall meeting DMcC, but had certainly done so by 2011.
Reverend Warwick said that the brothers started out as friends of friends, but as he got to
know them they also became friends of his. The brothers were keen for the third and fourth
defenders to have a piece of land at Lochbroom and as HMcC could not drive he asked the
Reverend Warwick to take him along to his solicitor. He took him to Alpin Stewart's office
and sat in on the meeting. He was asked to take all three brothers to Mr Stewart's office
later to discuss the land sale and did so.
[181]
The Reverend Warwick would also see the three brothers out socialising, particularly
at the Saturday evening pipe band. They would know quite a few people and would talk to
them. HMcC followed Iain Stewart's progress with his accordion by attending
competitions. The Reverend Warwick did not consider the brothers were vulnerable to
being influenced. He thought they very definitely knew their minds and what they wanted.
He gave an example of the fact that the brothers had an old white van with an armchair in
the back of it. When they went out in the van, DMcC would sit in the armchair which was
not bolted down and had no seatbelt. This was not legal and he did not think this was a
good way for DMcC to be transported. He tried to persuade the brothers that it wasn't safe
but he could not shift them at all. They only stopped this practice when the van did not pass
its MOT, which was roughly 2013.
71
[182]
The Reverend Warwick described the relationship between the third and fourth
defenders and the brothers in 2013/14 as very strong. They had known each other for many
years and particularly HMcC was very close to them. The Reverend Warwick considered
that the third and fourth defenders were like a surrogate family for HMcC. He was used to
going away whereas RMcC was tied to the land and had a strong tie to DMcC. RMcC was
often reluctant to go places if DMcC did not want to go whereas HMcC loved to get away.
In relation to the power of attorneys, it was the Reverend Warwick's understanding that at
much the same time he suggested to the third defender to consider POAs for the brothers, a
financial adviser, Lachlan MacGregor was saying the same thing to HMcC. The Reverend
Warwick was very sure that nobody forced or coerced the brothers to change solicitors as he
and the third defender were the only people really involved with the brothers at that time
and they did not do so. He suggested a POA to the third defender as he had been attorney
to his own mother for 7 or 8 years and he could see the third defender doing quite a lot for
the brothers and so it seemed a natural thing to suggest.
[183]
In relation to the sequence of events, he thought the third defender indicated to him
that he was considering being POA for the brothers and they went together to see Alasdair
Fraser to ask him what would be involved. He, Mr Fraser, made it clear to the Reverend
Warwick that it was the brothers' wishes that he also be an attorney and he then spoke to the
brothers and they confirmed they were absolutely delighted with that. He considered he
would not only be helping the brothers but helping the third defender as otherwise it would
be quite some task. He does not recall being at Alasdair Fraser's office at the same time as
the brothers on any occasion. Once the power of attorney was in force the third defender
did the lion's share of the work, particularly as the Reverend Warwick was in Paisley until
August 2014. On returning to Strathpeffer he saw little difference in the brothers although
72
he knew HMcC was going to a memory clinic. He understood the problem to be
forgetfulness. As far as he was concerned HMcC still had his own point of view and was
very strong in it and was still holding conversations and recognising him. He considered
that if somebody was trying to take financial advantage of HMcC he would have the
wherewithal to pushback against it. RMcC was the same as always and the brothers all
seemed quite delighted about what he and the third defender were doing for them.
[184]
The third defender and Reverend Warwick arranged for Peter MacPhee, a former
nurse with the NHS, to be the brothers' housekeeper and to tidy the place up a bit. He was
there for 4 or 5 months and the brothers seemed to enjoy his food and the cleanliness of the
place. With the benefit of hindsight, the Reverend Warwick thought RMcC was perhaps
getting fed up with the intrusion. RMcC never said anything at the time about Peter
MacPhee removing paperwork from the farm. DMcC had a fixation with paperwork and
HMcC and RMcC would get frustrated as he would throw things out and that is why a PO
Box was arranged so that the mail could be collected and put into the hands of HMcC or
RMcC. The post office box was in Beauly and the mail would be collected by the third and
fourth defenders' daughter and taken to the brothers.
[185]
In June 2014 when the transfer of the farm was discussed the Reverend Warwick was
operating under a misunderstanding. He thought that the meeting with Alasdair Fraser and
the third defender was to talk about the brothers' wills. At the same meeting they started to
talk about a disposition. As the two things were being talked about he thought that the
disposition in relation to the farm would only happen when the brothers died. He did not
become aware of the immediate nature of the gift until October or November of 2014. He
knew of the disposition in Autumn of 2014 and that was because of a discussion with the
third defender. He thought that the reason the brothers transferred the farm to him and his
73
wife was that he would help the brothers fulfil their wishes, which were to remain on the
farm as long as they could, to have animals around them and not to go into care. He
thought that by making the gift to him and his wife the brothers thought their assets would
be being put to good effect and that the farm would continue as a farm. He agreed he could
have taken steps to reverse the actions of the brothers but he felt that could cause great hurt.
[186]
The Reverend Warwick gave evidence that the brothers wanted to give him £50,000
in 2013. He was unwell and signed off with anxiety and if he moved back to his home in
Strathpeffer he would have to take on the mortgage again but would not be working. The
brothers offered £50,000 and were pressing it on him. He "got them down" to £40,000 but it
was clear that they were beginning to feel hurt and he therefore agreed to take that. He
drew up a paper to get them to sign about it.
[187]
The Reverend Warwick gave evidence about the circumstances in which RMcC
moved in to the house in Muir of Ord. RMcC was delighted with it. He then decided to
move closer to HMcC's care home so he could visit both HMcC and DMcC in one day. The
brothers never mentioned any relatives to him.
[188]
In cross-examination by Mr MacLeod, the Reverend Warwick was shown page 1033.
This was an email from Fraser Ross at NHS Highland to Wendy Kerr at NHS Highland on 7
April 2015, the second paragraph of which says:
"I had a meeting with [the first defender] to share my concerns that HMcC and his
brother were happy for me to go back but [the third defender] had stopped it. ...[the
first defender] said that he also has concerns about how controlling [the third
defender] is. We don't think there is anything wrong going on it is just that he
appears to be over controlling and speaking for all the brothers without really asking
what they want."
[189]
The Reverend Warwick did not recall saying that but could not deny that that was
the gist of the meeting. The Reverend Warwick was asked again about HMcC and the fact
74
that in October 2014 he was deemed to have lost capacity. His position was that he did not
notice a change in HMcC in October 2014. He did not agree that the brothers were confused
and forgetful in 2013/14. In relation to the PO Box, he took nothing to do with the mail. He
did not know if someone else was sifting the mail. The post office box was working well so
even when DMcC went in to hospital there was no reason to suspend it. By working well he
meant it gave "us" an opportunity for the mail to be collected and brought to the brothers
and to consult with them if they needed help to respond to anything.
[190]
Page 1583, being an excerpt from the Code of Practice for Attorneys, was put to
Reverend Warwick. He gave evidence he was aware of his duties as attorney. He was
aware of the term "fiduciary duty". He was directed to page 1584 which detailed the
fiduciary duty of an attorney to keep records. He accepted that the transfer of title was a
gratuitous disposal of the farm for his benefit. In terms of the Guidelines for Attorneys, he
was never made aware of those. He accepted that he had a duty to act in the brothers' best
interests but did not accept that gifting their main asset, the farm, was prejudicial. He
indicated that it was not prejudicial to their state of mind as it was something they wanted
to do and as it was not their only asset it was not leaving them without funds. He had
access to their internet banking and was aware of the extent of their funds. There were no
records about what he did to satisfy himself regarding their financial position upon gift of
the farm. No independent financial advice was taken.
[191]
In relation to the £40,000 gift, Reverend Warwick confirmed that this was made when
he was an attorney of the brothers. The paperwork in relation to it was a document signed
by all three of the brothers. He took £40,000 instead of £50,000 "as that was clearly what was
going to please them".
75
[192]
When he was referred to Alasdair Fraser's file note on the fact that the proposal "did
not look good" he gave evidence that he was not thinking about that. It was a good thing in
terms of it was what the brothers wished to do. He did not agree that it did not look good
and considered such a suggestion to be discrimination towards unmarried men and gave
evidence that people have the right to do what they want with their own property.
[193]
Given his occupation, and that he took an oath to tell the truth, it gives me no
pleasure to say that I did not find the Reverend Warwick to be a credible and reliable
witness. In examination in chief he was verbose and comparatively relaxed. In cross
examination by Mr MacLeod he was very different. He became agitated. He had his hand
in his pocket constantly moving coins about, which I took to be due to his agitation or
nerves. He had the habit of telling you what he wanted, rather than answering a question. I
formed the strong impression that the reason his evidence coincided so much with that of
the third defender was either that the source of the information was the third defender and
not the Reverend Warwick, or because Reverend Warwick was parroting a "party line".
[194]
There were aspects of his evidence that were implausible. His whole account of
accepting £40,000 from the brothers rather than £50,000 was one of these. The fact that he
thought Alasdair Fraser was talking about the brothers making wills to leave the farm to
him, rather than an immediate transfer was another. I did not believe him about these
matters (and others). That, in turn, leads one to question what agenda he is lying to
promote.
[195]
Mr Roy McIvor gave evidence for the first and second defenders. He is a crofter at
Docharty, Dingwall and aged 69. He is a neighbour and friend of the first and second
defenders but also knows the brothers. He has known them for over 40 years. He bought
things off them and would see them at the pipe band in Strathpeffer and in Tesco, Dingwall.
76
As the last time the witness thought he dealt with the brothers on Logie Farm was probably
in 2013, I did not find his evidence of a great deal of assistance.
[196]
Ms Jane Menzies, aged 60 and the owner of the agricultural supply business Animal
Health Highland gave evidence for the first and second defenders. She started working in
the business in 2009 and the brothers were customers. She also knows the first and second
defenders and has done for longer than 9 years as friends. HMcC would be the one who
would come into the store. RMcC would be the driver and he would tend to wait in the car.
A customer would sign a chitty for goods and would receive a statement at the end of the
month. HMcC did that in relation to any purchases for Logie Farm.
[197]
The store had a promotional event in 2014 on one Saturday in the summer. The
brothers attended. They sat at a table with the witness and had a burger. They chatted and
had a lovely time. By March 2017, RMcC was the one who came into the store. Prior to that
she had noticed HMcC would come in and would then have forgotten what he had come
for. She could not estimate when that was. By March 2017, RMcC was the one signing
chitties.
[198]
Again, the scope of this witnesses' evidence was of limited assistance.
[199]
Alexander (known as Hamish) Polson gave evidence for the first and second
defenders. He is 83 and a retired architect. He farms at 9 Drynie Park near Logie Farm. He
has farmed there for 30 years and knew the brothers slightly. He saw the second defender
working at Logie Farm but could not pinpoint the date of that. I did not find this witness'
evidence of assistance given its limited scope.
[200]
Mr Euan Donald gave evidence. He is a 53 year old solicitor and director with Innes
and Mackay Solicitors. He has been a qualified solicitor for nearly 32 years. He gave
evidence about events in 2018. His colleague, Eilidh Bain, was instructed by RMcC in
77
October 2018 to revoke an existing power of attorney. Ms Bain contacted Dr Vickerstaff to
discuss the revocation and to ascertain if RMcC had capacity to revoke it. Dr Vickerstaff
confirmed that he had such capacity.
[201]
Ms Cath McQuarrie gave evidence. She is a 69 year old retired vet who previously
worked at Conon Bridge Vets. She retired in 2015 but had been a vet there for 24 years
previously. She knew the brothers as their vet. She did not know DMcC and described him
as "a shadowy figure in the background". She would see the brothers occasionally and at
least once or twice a year. She was asked about their minds in 2014 when she was dealing
with them and she indicated she thought they were pretty much as they always had been
but that they were very quiet anyway. She noticed a deterioration after she retired.
[202]
She gave evidence about an incident in January 2007 when she was at Logie Farm.
RMcC keeled over. He had a severe pain in his arm when he came round and an ambulance
was called. Ms McQuarrie gave evidence that after this episode she was given a bag with a
bottle of whisky in it. Thereafter she was in her car and HMcC approached her and asked if
she got the cheque. She discovered that there was a cheque for £1,000 in the whisky tube.
She felt that she could not accept it, but that to give it back would be insulting, so she
approached friends of HMcC and RMcC for advice. They told her that although the
brothers looked like they "did not have two beans to rub together" they were quite well off.
At that point her father had been admitted to a hospice so she filled out the cheque, as the
payee had been left blank, with the hospice name and made it a donation to charity. She
wrote to the brothers to tell them what she had done. They later gave her another cheque
for £500 and again she made that out to another charity.
[203]
Mrs Patricia Black is a 61 year old solicitor. She was enrolled in 1983. She knows
Logie Farm as she was brought up near there. She knows the first and second defenders but
78
is not friendly with them. She would see the brothers at the Black Isle Show as a child. She
would see them at the animal sales between the period 1978 2009. The witness knew of the
brothers selling land at a discount. She bought two parts of Logie Farm from them for two
separate clients. As a result she had examined the title. Over the period from their father's
death there had been about 13 or 14 disposals. The witness gave evidence about the
brothers' father's will saying that land could not be sold without all three agreeing and if
any brother raised an action of sale and division they would lose their right to inherit. The
witness gave evidence about a meeting she had with Fiona Thomson, solicitor and second
pursuer in this action about another case. She had said several things about the present
action but I do not find these relevant to the matter at issue before me. I found this
witnesses evidence of limited assistance to the matters at hand.
[204]
The final witness for the first and second defenders was Dr Kirsten Vickerstaff, a GP
at Gairloch Health Centre. She has been a GP since August 1995 and based in Gairloch for
about 19 years. She gave evidence that RMcC registered as a patient at her practice on 23
July 2018. On 4 October 2018 Dr Vickerstaff visited RMcC at home. She carried out an
assessment of his mental capacity and concluded that he had capacity to make welfare
decisions. She confirmed that position to solicitor Eilidh Bain on 12 October 2018.
[205]
In cross-examination Dr Vickerstaff confirmed that a call she had with the third
defender on 26 July 2018 had raised some concerns with her. This was because when RMcC
was registered at the practice the third defender had made a very unusual request, which
was that all correspondence and communications were to go through him.
[206]
That concluded the proof for the first and second defenders.
79
THIRD AND FOURTH DEFENDERS' PROOF
[207]
The third defender generally presented the case for himself and his wife, the fourth
defender. She was given the opportunity to present evidence and to ask questions of each
witness but rarely took that opportunity. The exception to this was when the third defender
gave his own evidence; on that occasion he was examined in chief by the fourth defender.
Three issues arose with the presentation of their case by the third and fourth defenders. The
first was that the third defender appeared to be following a pre-prepared "script" of
questions, which some witnesses, particularly his family members, had already "rehearsed"
answers to. The second was that lay supporter to the fourth defender, Mrs Berkenheger
(daughter of the third and fourth defender) was called to give evidence. This was most
irregular, as she had been present in court throughout the evidence of the preceding
witnesses, but I allowed it. The third was that the third defender chose to give his evidence
last, notwithstanding the fact that it was explained to him that his credibility and reliability
may be commented upon as a result.
[208]
Miss Elizabeth Cameron gave evidence for the third and fourth defenders. She is 65
and a close friend of the third and fourth defenders' daughter, Marina Berkenheger. She
was Marina's bridesmaid at her wedding. She knew the brothers and first met them at the
accordion and fiddle club in Inverness and in Dingwall. She used to sit with HMcC and
RMcC at the club. They were very sociable and interacted with her and the Stewart family
very well. She first met them probably around 2010 or 2011 and described them as being
"very close" to the Stewart family. The witness did not notice any difference in HMcC or
RMcC in June 2014. She described them as mentally and physically well. She did not
consider them liable to be influenced because they were of strong character.
80
[209]
In cross-examination the witness was surprised to hear that HMcC had been
diagnosed with dementia and that his doctor said he no longer had capacity in October 2014.
The witness never met DMcC.
[210]
I found this witness' evidence of limited use in determining the issues at hand. Her
interactions with the brothers were limited and in a social setting where music was being
played.
[211]
John Williams gave evidence for the third and fourth defenders. He is aged 73 and a
retired electrical engineer. He has known the third defender and the fourth defender and
their family for more than 20 years. He first met the brothers 5 or 6 years ago when he was
asked to do small electrical jobs at Logie Farm. The person who asked him to do the jobs
was the third defender.
[212]
The witness gave evidence that he was in the bank at Dingwall about 3 years ago
when RMcC appeared behind him. He asked the witness if he had been paid for work he
had done at Logie Farm recently and the witness indicated that he was actually there to
deposit the cheque he had been given. At that point a person appeared beside RMcC, a
woman with brownish hair, and they was ushered into an office. She did not seem to be a
friend of RMcC as he appeared a bit agitated when she appeared beside him. At that point
the cashier told him there was a problem with his cheque and that it would have to be
represented. The witness gave evidence about assisting RMcC to move to Poolewe and
RMcC wanted to move there.
[213]
In cross-examination the witness indicated that RMcC spoke very highly of the third
defender and his family. The cheque that he received was signed by one of the brothers, as
far as he could remember. Overall the witness' evidence was of limited assistance.
81
[214]
John Coates gave evidence. He is 69 and owns a garage in Dingwall. He has known
the brothers for 50 years. He was brought up on a croft up the road from them. When he
started breeding cattle as a hobby they helped him out. The brothers were quite paranoid
about people stealing things from the farm. He would see the brothers at the Dingwall Mart
and at the Strathpeffer pipe band. They would always be clean and turned out tidily and
were very sociable, apart from DMcC who was very quiet and would often sit in the car
reading the paper.
[215]
In cross-examination the witness confirmed that the brothers were generous with
their time in helping other people. In his view, HMcC was still quite sharp when he was at
the Mart auctions in 2014. The brothers referred to the third defender as a "distant cousin".
He had seen the second defender at Logie Farm sorting out paperwork.
[216]
In cross-examination by Mr MacLeod the witness advised that he thought the third
defender put up a camera at Logie Farm, or maybe his son did. In 2014 he was aware of
rumours that people were at the farm just to help out to see if they could get something in
the end. He did not really take the rumours to heart. He did not consider that this was
because the brothers were vulnerable, simply that they were getting old. Overall, I did not
find the evidence of this witness to be of great assistance.
[217]
Iain Stewart is 27. He is the son of the third and fourth defenders. He gave evidence
that he knew the brothers all of his life. They would be present at his house for Christmas,
Easter and so on. HMcC, in particular, looked upon him as a grandson or sometimes as a
son. He was also close to RMcC and DMcC, but was closest to HMcC. He went on various
trips with them. He went around the Black Isle Shows with them many times, to the
Maryburgh Gala and all sorts of farming shows and Highland Games. This happened all
through his childhood, more so in his teens and late teens. When his father injured his
82
Achilles in 2008, RMcC took him to and from school for several months and took his mother
shopping.
[218]
The witness gave evidence that he started to get even closer to HMcC when his
brother, David, died as the third and fourth defender were grieving and HMcC and RMcC
would take him away on various trips. The death happened when he was 9 years old.
When he was about 10, HMcC took him to Dumfries and bought him an accordion which he
described as "a very special gift".
[219]
The witness' evidence was that when he was in his early teens at the Black Isle Show
the brothers sat him down and spoke about the future of the farm. They alluded to the idea
that he could be a potential candidate for keeping the farm going. There were many further
conversations in the same vein over the years. HMcC was the most vocal about passing it to
him but DMcC and RMcC were present when HMcC would mention this and seemed "very
agreeable" to the farm being passed down to him. The witness gave evidence that he was
taken aback as he was very young and it seemed a lot of pressure to go through these kind
of talks. However, he remembered quite vividly the conversation when they were saying
they wanted the farm to go into good hands.
[220]
He did not have any concerns about the mental wellbeing of any of the brothers,
apart from a time when DMcC took ill quite rapidly following an infection in his leg. He
could not place the date of this but there was a rapid change from DMcC being normal to
losing his ability to speak and the witness was worried about him. HMcC and RMcC were
pretty well alright up until the end of 2016 when HMcC started to show his age and became
a bit more in need of assistance.
[221]
The witness was asked the question: "What's your final assessment of the situation?"
He replied:
83
"I would say we always listened to what they wanted in respect of their autonomy
and never made any decisions for them. We always respected their way of life."
[222]
In cross-examination from Mr Dunlop the witness' evidence was that it was more
after the death of his brother in 2003 that the brothers became closer to their family. He
exchanged birthday and Christmas gifts with them. During the period 2010 to 2015 he
would see HMcC once a week at least. It would usually be a Saturday afternoon or Sunday.
The witness was asked again about the discussions of the farm being transferred to him. He
said that this was very regular, almost every time he saw them they kept bringing it up.
They wanted to pass the farm down and said they were getting older. They said they did
not want the farm to go to unknown people and wanted it to be secure with people who
would appreciate it and who knew them well.
[223]
He gave evidence that he knew about the transfer of the farm to his parents at the
time. The three brothers sat him down because it was something important and said that
they wanted the Stewarts and the Warwicks to get the farm and they could organise it
amongst themselves. They kept saying that they loved the Stewart and Warwick families.
[224]
In cross-examination by Mr MacLeod the witness agreed that he prepared for giving
evidence by his father making him aware of what he had to do for court in terms of
preparing evidence and his father prepared him for the kind of things he would like to hear
about. He gave him a rough idea of what he wanted him to say.
[225]
The witness was pressed on his conversations with the brothers about the farm being
transferred to him. He gave evidence that, when he was 12 or 13, the brothers sat him down
and said he was a candidate to run the farm one day. Nothing was mentioned about the
other candidates. They said they thought the world of him and his family and wanted the
farm to go to someone who was close to them and who deeply cared for them. HMcC
84
expressed a love for his family, and him in particular, and said he wanted the farm to go to
him in particular. At the time he was taken aback and did not want to push the idea and he
just kept being polite. It was put to him that this was an odd thing to say to a 12 year old
and the witness agreed.
[226]
In re-examination the witness said that his father, the third defender, had not told
him what to say in evidence.
[227]
My overall impression of this witness' evidence was that he was dogmatically
following a particular line. I found his evidence incredible, specifically in relation to the
brothers repeatedly indicating that they wished him to have their farm from as early as age
12 onwards. I did not consider Iain Stewart to be a reliable witness. I considered he had a
particular agenda, being to back up his father's position, whatever that took.
[228]
Gavin Berkenheger is the son in law of the third and fourth defenders. He gave
evidence about meeting the brothers when he started to date his now wife Marina at the
beginning of 2013. Thereafter at some point he was on Logie farm picking up plastic. His
evidence was that it was quite clear from the beginning that there was a close bond between
the third and fourth defender's family and the brothers.
[229]
In cross-examination the witness gave evidence that he lived in Ireland from 2007
until the end of 2012. He moved back to his parents' home at the beginning of 2013 but then
had a company house in Aberdeenshire and was coming and going from there. In February
or March of 2014 he and his wife bought the house in Muir-of-Ord. Given the witness'
limited involvement with the brothers prior to and at the material time I did not find his
evidence of assistance.
[230]
Marina Berkenheger gave evidence. She is 39 and the daughter of the third and
fourth defenders. She gave evidence that her earliest memories of the brothers were when
85
she was 5 or 6 and she would venture up to Nan Dickinson's croft and the brothers would
come to visit her. That is where she met them. The brothers would deliver straw and hay
bales to her and were good friends of Nan's.
[231]
Mrs Berkenheger's piping teacher was a good friend of the brothers and she would
often see them at pipe bank galas. She was in the band from aged 16. In 2013 the witness
felt that the brothers' mental state was fine. She did not see any difference in them. HMcC
could follow a conversation and had no problems. RMcC was more reserved but would still
have conversations. They had been at her wedding in August 2013.
[232]
In cross-examination from Mr Dunlop the witness gave evidence that she did not
think the brothers were persuadable or vulnerable to suggestion in summer 2014. HMcC
had his own mind but wanted to be your friend. RMcC was reserved and would weigh
things up. DMcC was more reserved, he liked to read books and was strict about food. She
knew about a couple of discussions about what would happen to the farm. On one occasion
they said to her that they would like her to have the farm. She just laughed this off. This
was said all through the years when she was a teenager.
[233]
The witness worked near Beauly Post Office where the PO Box was. She would
collect the mail from the post office and would deliver it to the brothers. She would take it
to the farm and normally give it to HMcC or RMcC. If they were not in she would hold on
to it until she saw them.
[234]
My overall impression of this witness was very much the same as her brother. I
found it incredible that she could recall events when she was 5 or 6 years old. I did not
believe her evidence about the brothers repeatedly indicating that they wanted her to have
the farm.
86
[235]
Mrs Mhairi Stewart the fourth defender gave evidence. She is 69 and married to the
third defender for forty years. She gave evidence that they used to live on a croft opposite a
lady called Nan Dickinson. She would be regularly visited by the brothers. Mrs Stewart's
daughter, Marina, also used to visit Nan Dickinson and as a result she got to know the
brothers. Mrs Stewart gave evidence that Nan Dickinson was HMcC's girlfriend.
[236]
Mrs Stewart gave evidence that she first met the first defender when he called to
their house in 2001 to discuss his interest in motorbikes with her husband. When the
witness' son, David, was killed she was in hospital at the time. The first defender helped
them. The brothers visited them when they found out about her son's death and gave them
support thereafter. Following his death, the witness and her husband thought about
moving to her family croft on Lewis. The brothers did not want them to go and tried to
persuade them to stay. The brothers would sometimes give them a lift to Ullapool to get the
ferry to Lewis and the witness recalls a discussion when they said that they wanted them to
have the farm. They proposed to transfer the title to them. In 2008 the third defender had a
fall and snapped his Achilles. He was incapacitated for 9 months. RMcC would take Iain to
school and take the witness out shopping.
[237]
HMcC mentioned a piece of land on his farm where he thought the witness should
build a house. He remembered the fact that Nan Dickinson had previously offered the
couple her derelict house and land on her croft. The title that the witness and her husband
acquired of land at Inchbroom has never been used. They continue to own it. The witness
gave evidence that the brothers were invited to her home for a meal on many occasions. The
witness gave evidence about RMcC deciding to move to Poolewe. The witness gave
evidence about HMcC going on various trips with her and her husband, usually to
accordion performances. The witness was shown various photographs, including a photo of
87
HMcC on his 80th birthday in January 2010, and a photograph at her daughter's wedding in
August 2014 when RMcC and HMcC were both in attendance, but not DMcC.
[238]
In cross-examination by Mr Dunlop the fourth defender confirmed details in relation
to the photographs. She confirmed that she became friends with the brothers 40 years ago as
they knew her husband through his musical and singing performances. She gave evidence
that she thought RMcC's memory in June 2014 was good. She gave evidence that the
brothers first proposed transfer of the title of the farm to her and her husband in 2004.
RMcC was driving. HMcC and DMcC were in the back of the car and she and her husband
were also present. She gave evidence that HMcC said that he did not want them to go to
Lewis and that they could transfer the farm to them. They were still wanting to stay on it
but they would know where the farm was going when they died. The witness gave
evidence that she recalled RMcC indicating this would be a good idea. The witness gave
evidence that DMcC was nodding and smiling. The witness gave evidence that they said
the same thing again on lots of occasions. They did not take the brothers up on their offer as
they had no intention of coming back from Lewis.
[239]
The witness was asked if she would celebrate things with the brothers, for example
HMcC's 70th birthday (rather than 80th which was seen in a photograph). The witness
replied that the brothers would come to her house and they would give them a hamper for
Christmas. They started to come to her house for Christmas in 2005. They would mainly go
to musical events together as they loved those. The witness was asked what her position
would be if it was suggested to her that HMcC's memory was failing. She indicated she did
not notice anything different, but went on to say that he maybe started to forget some names
but was quite good in knowing what he wanted to do.
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[240]
Mrs Stewart gave evidence that she was aware of the brothers being generous. She
gave evidence about HMcC paying for the wedding of a woman from Muir-of-Ord's
daughter. The mother had asked if she could put a marquee on his farm but HMcC thought
that would be quite a lot of work. HMcC told the witness that he had paid £30,000 for the
wedding instead.
[241]
In cross-examination by Mr MacLeod, Mrs Stewart was asked about the trip to
Ullapool in 2004. She confirmed that it was not long after her son had passed away and she
was clear that all three brothers were in the car when they said that they would like them to
stay on the mainland and that they would like to pass the farm to them. Her evidence was
that her son Iain was staying with her cousin in Lewis in the next door croft at that time.
Marina was at home working. She gave evidence that they said this again a few times over
the years. HMcC said "there's no pockets in a shroud" and made it clear that he would like
to see where his property was going when he was alive, rather than relying on a will. It was
put to Mrs Stewart that it was odd that there was a gap between 2004 when that was said
and the transfer happening. Mrs Stewart's position was that that was because they did not
push anything.
[242]
Mrs Stewart was shown page 772 of the pursuers' productions and a medical entry
for 21 March 2014 (quoted at paragraph 155 above). She was asked if she recalled DMcC
being incontinent at that time. She did not. She gave evidence that she was not aware of
HMcC being diagnosed as having dementia in 2013. Her evidence was that her husband
was giving a performance at the MacKenzie Centre (a facility for senior citizens) when
HMcC saw a notice for the memory clinic and said that he maybe wanted to go to that. Her
husband arranged that by phone straightaway.
89
[243]
It was put to Mrs Stewart that the brothers were confused by 2014. She did not think
that they were. It was put to her that the brothers were confused about what property they
owned. Mrs Stewart was not sure about that. She agreed that HMcC spent £30,000 on
someone else's wedding in 2012. She considered that it was really a gift.
[244]
I did not find Mrs Stewart credible or reliable. I got the distinct impression that she
was following a script provided to her by her husband. Her evidence about the journey to
Ullapool when she maintains the brothers said that they wished her family to have the farm
struck me as something that had been made up in advance to suit the third and fourth
defenders' ends in this case. I say that because of the way in which the evidence was given
by Mrs Stewart; it did not present as something she was recalling from her own memory. In
addition it is not a position that is foreshadowed on record. In answer Two for the third
defender in the final sentence thereof the third defender's position is:
"In 2013 the brothers advised the third and fourth defenders that they wished to
transfer the farm to them".
i.e not in 2004 or 2007 on a car journey, as the witness is now maintaining.
[245]
There were other aspects of Mrs Stewart's evidence that I found unsatisfactory. For
example, her position that HMcC and her neighbour, Nan Dickinson, were in a relationship
is not foreshadowed on record. What is said there (page 43, line E) is:
"HMcC and RMcC met the third and fourth defenders' neighbour Nan Dickinson
when visiting the third and fourth defenders at their home. They subsequently let
fields from Nan Dickinson."
Again this did not accord with Mrs Stewart's evidence. I do not consider I can place any
reliance on her evidence, unless it is corroborated by other witnesses who I do believe.
[246]
Mr Douglas Stewart, the third defender, gave evidence. He is 69 years old. He is a
trained cabinet maker and gave his occupation as such and said he was a photographer and
90
photojournalist for a while and an entertainer/musician. He gave evidence that he first saw
the brothers at musical events when he was 16 years old. He was singing with a band at
Allangrange House and the brothers lived at Allangrange Farm so he saw them there. He
gave evidence that there was a family connection between the brothers and his mother's side
of the family; he said the brothers had a cousin who was a cousin of his mother's called Nan
Tulloch. He gave evidence that the brothers visited his mother at home because she had had
both legs amputated. She told the brothers at the time of the visit that the third and fourth
defenders were to be married. That was in 1980. They attended his mother's funeral.
[247]
Mr Stewart gave evidence that the first time he went to Logie Farm was in 1999 when
the brothers' farmhouse had gone on fire. He gave evidence that after his son's death he no
longer wished to work with customers in his furniture business and decided to leave for the
Isle of Lewis. The brothers would help out in transporting materials to Ullapool for a
renovation that he was doing on Lewis. The brothers appreciated the reason that they
wanted to move to Lewis but were sorry to see them go as they did not want to see them
disappear, particularly in their old age. They phoned asking how he was getting on and did
so frequently. They looked upon him as their family and offered them land. Mr Stewart's
evidence was that when this was rejected the brothers were upset that they were not taking
them up on their offer and he explained that the reason for this was that it was not
financially possible. He had a mortgage on his home and if he was not going to be earning
from the furniture business he was not going to be able to pay the mortgage. They re-
mortgaged their house to pay for the renovation on Lewis and he explained to the brothers
that they would have to sell their house in Muir-of-Ord irrespective of feelings. HMcC said
that he could help them financially and would give them a plot of land. This was land at
Inchbroom, but they were not able to obtain planning permission.
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[248]
In relation to the power of attorney, Mr Stewart's evidence was that this came about
after a meeting with financial adviser, Lachie MacGregor. He suggested it and Mr Stewart
agreed but the agreement was that his position would only be as "legal assistant and witness
on their behalf" and he would never make decisions on their behalf. They would make their
own decisions. The first defender became involved because the brothers met him at the
Stewart's home over a five year period and got to know him very well. They liked him and
asked him if he would consider helping them out by taking on the position.
[249]
Mr Stewart was asked the question:
"When you learned about the transfer of property what was your reaction?"
He answered:
"There was no shock. From 2004 these men, on regular occasions, not just once I
would say at the very minimum once a month, would remind us of the offer of a
field... they wanted it to be in our name when they passed...".
[250]
Mr Stewart was asked if he knew about HMcC attending the memory clinic. He
gave evidence that in the MacKenzie Centre in Inverness with HMcC he had seen the sign
and said that he was in the right place. Mr Stewart's evidence was that HMcC was "a bit
forgetful but it never affected him in any way". HMcC asked him to make an appointment
for him at the memory clinic and he did that. The witness took him there and he was very
pleased with the people he saw.
[251]
Mr Stewart gave evidence about the brothers' purchase of Wards Croft. He gave
evidence that the brothers used to drive round looking at all the houses for sale as they
would never be able to be on the farm if they were getting older. He gave evidence about
RMcC moving from Wards Croft to a house in Poolewe after he saw it for sale. Mr Stewart
was asked whether any thought was given to having the siblings placed in the same care
home. His answer was that the care home said they could not have siblings together.
92
[252]
In cross-examination by Mr Dunlop, Mr Stewart was asked when he first became
aware of the brothers. He replied that this was when he was 16. He was asked at what
point they became friends. He said "in 2000.... no 1982". Mr Stewart gave evidence that the
brothers looked upon his children as grandchildren. They used to buy them things like
bikes at car boot sales. He went to see the financial adviser, Lachie MacGregor, with HMcC.
HMcC told Lachie MacGregor that he did not want the Stewarts to go back to Lewis and
then said, on behalf of the brothers, that they wanted to give all of their property to the
Stewart family as they had no close family themselves. It was only HMcC who went to the
meeting with Lachlan but once he got the information he would relate that to his brothers.
Two people were appointed as POA as there was a meeting with Alasdair Fraser and he said
it might be better to have a second POA as it could be a complicated situation for one person
on their own. HMcC was then in the Stewart's house and asked the first defender if he
would consider it.
[253]
Mr Stewart was asked if he went to any medical appointments with the brothers in
2013/14 and he indicated that he did. He denied that any medical staff ever said any of the
brothers suffered from dementia. He would remember that. His position was that in 2014
HMcC's short term memory was not good but his general memory was good and you could
have a great conversation with him. It did not affect his decision making. He was certain of
that because he had known him for so many years he would see a difference in him right
away. Mr Stewart denied ever giving RMcC a document to sign in June 2014 apart from his
bus pass form. He specifically denied putting any deed in front of the brothers in relation to
the transfer of land. Mr Stewart agreed that a PO Box was set up for the brothers' mail. The
reason for that was that McC used to take the mail and not tell his brothers about it.
93
[254]
Mr Stewart met Catherine Seager, a relative of the brothers who Hugh had
previously left a bequest to in his will. He had never met Hugh Fraser. He had never heard
the brothers discuss leaving the farm to Hugh Fraser; when the brothers were talking of
relatives they said that they did not have any relatives they knew and wanted to ensure that
the farm would be passed on to somebody they did know while they were alive. Mr Stewart
was shown a letter, item 6/5/57 of process, which RMcC delivered to Middleton, Ross and
Arnot. He confirmed that he typed the letter. He gave evidence that he did so at RMcC's
request. It was what RMcC wanted.
[255]
In cross-examination by Mr MacLeod the third defender was obdurate. He had a
particular pre-occupation with his belief that he was never "acting under the POA". When
it was put to him that he was a POA he indicated:
"I would not say I was acting, I was appointed."
He gave evidence that if he was required to do something he would only do it for the
brothers at their request. He denied ever signing anything in his capacity as POA. When it
was put to him that he signed a cheque in favour of the first defender in 2013, he agreed that
he did so. His position was that he only signed it because the brothers wanted him to do so
and that it was easier for that to be done by one signature.
[256]
Mr Stewart agreed that he had not been to the farm prior to 1999. When it was put to
him that it was odd that the brothers did not stay with him and his family if they were such
good friends, his position was that he did not know the house had gone on fire. He was
shown a note from 21 March 2014 about DMcC appearing incontinent. His position was that
it was because DMcC was out feeding sheep. He had no worries about him. DMcC was
very independent and would not let anyone go near him. Mr Stewart's evidence was that he
had no concerns about DMcC other than an infection in his leg.
94
[257]
When page 1061, an entry of 21 January 2014, was put to Mr Stewart, specifically the
reference to HMcC having a younger brother "who might have his own mental health
problems", he replied "That would explain [DMcC], yes." When it was put to him that
DMcC would go along with what the other brothers wanted to do he replied "Not at all".
[258]
When page 1047 of the medical notes (detailed in full at paragraph [159] above) was
put to Mr Stewart, he indicated he did not remember having any private conversation with
Dr Wendy Kerr. He did not understand the reason for the entry and said "this does puzzle
me". When it was put to him that he must have given that information to Dr Wendy Kerr he
denied having done so.
[259]
When it was put to Mr Stewart that Angus Ross was concerned that he was
"grooming" the brothers Mr Stewart gave evidence that Mr Ross' wife was Dorothy Fraser's
aunt and her brother would come round and collect money from the brothers on a regular
basis. He did not put that to Mr Ross in cross-examination because it did not come into his
mind at the time. Mr Stewart denied being over controlling of the brothers' lives. He
denied knowing that HMcC had dementia in 2013 and gave evidence that nobody informed
him.
[260]
Mr Stewart gave evidence that the only people who opened mail which arrived at
the PO Box were the brothers. Mr Stewart agreed it was possible that he had been at every
meeting with the brothers that Alasdair Fraser, solicitor, attended. He said:
"They were terrible loose cannons. It was to be absolutely sure they were in."
It was put to him that there was no reason for him to be involved, but his position was that
there was. Getting him to contact Alasdair Fraser was a "friendly way of dealing". Mr
Stewart agreed that he met Alasdair Fraser at Logie Farmhouse when the disposition was
signed. He agreed that he informed the brothers that Alasdair Fraser was coming. He just
95
could not understand Alasdair Fraser's evidence to the effect that he had posted a
disposition to the brothers. He did not know what Alasdair Fraser said to the brothers as he
did not go into the house.
[261]
Mr Stewart confirmed that the brothers had a financial adviser, Lachlan MacGregor.
He was retired but he was speaking to the brothers on a friendly basis. He did not know of
them speaking to anybody else for advice. Mr Stewart did not agree that the brothers had
got rid of a huge asset which was prejudicial to their interests as:
"I made sure it wasn't. They had sufficient funds available, all they needed."
It was put to Mr Stewart that he had a moral obligation to the brothers to transfer the value
of the farm back to them. He said:
"The whole purpose was to pay our mortgage. If I stopped going to Lewis we would
lose everything. Any money paid our mortgage and any left paid for solicitors' fees
so we basically have no money. Why would you give a gift back? They loved our
family. This was a gift."
[262]
He went on to say that he could not afford to transfer the funds back even if he
wanted to. He gave evidence that his mortgage had to be repaid. It had reached the end of
its term. He was not earning. He would have lost his house. It was put to him that these
were three elderly men vulnerable to exploitation. Mr Stewart's position was that they were
not vulnerable. They were three decision makers.
[263]
I did not believe Mr Stewart while he was giving evidence. He came across as
someone trying far too hard to promote a particular standpoint. He was, as I have already
commented, obdurate at times. He delivered artful answers in chief, but his demeanour
changed in cross-examination by Mr MacLeod. In certain passages of cross-examination he
prevaricated and then obfuscated. The atmosphere in the court changed; there was an edge
of awkwardness as we all witnessed his attempts to justify his position. His lack of
96
credibility and reliability were not, in my view, matters of fine balance, but were patent. An
example of outright lying was his account of not being aware that HMcC had dementia; it is
perfectly clear from the medical records that he was intimately involved with appointments
up to, including and after this diagnosis being made. It is preposterous to suggest
ignorance.
[264]
Finally, the third and fourth defenders sought to lodge an affidavit by
Lachlan MacGregor. This was objected to by the pursuers. I do not understand them to be
insisting on their objection, but instead to be submitting that little weight ought to be given
to the affidavit, given that Mr MacGregor has not been subject to cross-examination.
[265]
Lachlan MacGregor's "affidavit" appears to have been prepared by the third
defender. It does not follow conventional legal form. For example it doesn't give the
deponent's age or occupation. It doesn't explain why Mr MacGregor is unable to attend
court (yet is apparently able to attend Alasdair Fraser's office as he has notarised the
document there). In any event the terms of the affidavit do not assist with the question of
any independent advice provided to the brothers at the time of the disposition being signed
and as such I shall attach little weight to it.
Submissions
[266]
All parties provided written submissions in advance of the oral hearing on
submissions. I am grateful to parties for the obvious work that went into the provision of
their written submissions. I do not propose to repeat the terms of these here, as they are
available in process to be read if necessary. I simply propose to comment on specific
matters, if and when they become relevant to my ultimate decision, as set out below. In
addition, parties made various points at the oral hearing on submissions. Again, I shall refer
97
to them, as and when relevant. Mr Dunlop, for the first and second defenders prepared a
written reply to the pursuers' closing submissions and this is also lodged in process.
[267]
Parties agree that the burden of proof is on the pursuers. The pursuers require to
satisfy the court, on the balance of probabilities, that the disposition of Logie Farm on 25
June 2014 is vitiated by facility and circumvention and/or by undue influence.
Fraud, Facility and Circumvention
[268]
As I said in my judgment following debate, there are three constituent elements to
this legal concept which require to be proved:
"Parties referred to Mackay v Campbell 1967 SC (HL) 53. From that case it is clear
(and it was common ground between parties) that there are three constituent
elements which require to be proved to succeed in an action based on facility and
circumvention. They are (summarised):
1.
Weakness and facility;
2.
Circumvention; and
3.
Lesion
These three factors are all interrelated and they must be looked at as a whole and not
in separate compartments. The strength of averments on one matter may
compensate for the weakness of averments upon other matters."
[269]
To put this in another way, per Lady Smith in Horne v Whyte [2005] CSOH 115, at
paragraph [51]:
"For the pursuers to succeed... it is necessary that they establish (1) the facility of the
deceased at the time the codicil was made; (2) acts of circumvention or fraud which
impetrated or procured the codicil; and (3) lesion. Direct evidence is normally
required for the first and third of these elements but the second, for obvious reasons,
is usually where the granter of the challenged deed is dead, a matter of inference.
The three elements are clearly interrelated, they require to be looked at as a whole
and the strength of a pursuer's case on one matter may compensate for weakness on
other matters (Mackay v Campbell; Pascoe-Watson v Brock's Executor). Circumvention
can be inferred from proof of facility and lesion, or a combination of both with
circumstantial evidence."
98
[270]
In relation to the facility of the separate brothers they were 84 (HMcC), 82 (RMcC)
and 79 (DMcC) when the disposition was signed. "Facility" means mental weakness (but
not insanity) and may be attributable to age, grief or illness. As well as their age the
pursuers offered to prove that the brothers were all in deteriorating health. The averment is:
"That the health of each of the brothers deteriorated from 2012 onwards. HMcC and
DMcC suffered from dementia." (The first sentence of condescendence 4, page 54).
What then was the evidence in relation to the brothers' health when the disposition was
signed on 25 June 2014?
[271]
In relation to HMcC, the medical evidence was clear. Dr Mack gave evidence about a
letter received at the GP surgery, from speciality Doctor Wendy Kerr, dated 21 January 2014
diagnosing HMcC with dementia. The diagnosis had been made following a CT scan that
showed evidence of cerebral atrophy, "particularly marked at the medial temporal lobes".
By 28 October 2014 the speciality Doctor confirmed that HMcC no longer had capacity. The
third defender was perfectly well aware of this fact as he had attended the memory clinic in
Dingwall with HMcC on 29 April 2014. He could not have been other than aware of the fact
that HMcC was being prescribed reminyl (a medication used to treat dementia).
[272]
The letter from Dr Kerr makes this very clear as it says:
"He has been on reminyl XL for a few months and [the third defender] has already
noticed quite an improvement." (Page 1053)
The matter of the third defender's knowledge of this is put beyond doubt by page 1063 and
the letter of 21 January 2014 wherein the speciality doctor, Dr Wendy Kerr, writes:
"This would confirm our suspicion that he has a diagnosis of dementia mixed type
F00.2 and I discussed this diagnosis with H McC and [the third defender] today."
[273]
There is absolutely no other way than this can be interpreted, other than that the
third defender knew perfectly well that H McC was diagnosed with dementia on 21 January
99
2014. His attempts in the witness box to deny this were, as I have said, a clear example of
his lies. I have no doubt that HMcC's facility was affected when he signed the disposition of
Logie Farm, by virtue of his old age and dementia. That dementia creates a mental
weakness in an individual suffering from it was clear from the evidence of Dr MacEwan:
"He explained that dementia is a syndrome characterised by a progressive
deterioration and decline in cognitive functions of the brain, including memory,
concentration, orientation, and speed. The change occurs over a period of time,
usually years. The resulting decline in social and executive functioning brings
difficulties for an individual in managing their affairs. The commonest causes of
dementia are Alzheimer's disease and vascular disease. There has to be a decline in
both social and cognitive functioning for dementia to be diagnosed." (my emphasis)
[274]
It does not strike me from the evidence that HMcC's dementia could be said to be
only very mild. On 3 October 2013 (nine months before the disposition was signed)
Speciality Dr Wendy Kerr noted him as scoring 52/100 on the ACE III- a score Dr MacEwan
described in evidence as "very low", with a score of below 82/100 raising the question of
dementia. In the same letter she notes him as being:
"disorientated in time, performed very poorly on tests of memory, also impaired
fluency and visuospatial skills."
[275]
The position in relation to R McC is different. To my mind there was no clear
evidence of any weakness in his mind. On the contrary, we heard that he was able to
execute a revocation of a power of attorney, with Dr Vickerstaff confirming that he had the
capacity to do so, as late as 2018. There was a deal of evidence led about RMcC viewing his
brother HMcC as "the boss" and going along with what he wanted. To the extent that I
accept such evidence it was not, in my view, sufficient to establish any reduction in RMcC's
facility.
[276]
The position presented at proof was the least clear overall in relation to DMcC. I
think the vet, Cath McQuarrie, probably summed it up best by describing him as:
100
"A shadowy figure in the background".
Many witnesses who knew HMcC and/or RMcC well knew very little of and had very few
dealings with DMcC. It may be that he suffered from a disability, as mentioned by some
witnesses. The description given of him by many of the witnesses was redolent of someone
with additional support needs. Whatever the true position in that regard there is clear
information about his health within the records. Dr Thomas MacEwan had carried out a
review of these. He noted that DMcC was "confused" on 29 May 2012 when he attended at
Raigmore Hospital thinking he had an appointment there. Moving forward to 21 March
2014 (page 772 of the productions) there was an entry where DMcC was seen at his GP
practice with:
"same clothes on today, socks soiled, appears to have been incontinent."
On 11 April 2014 Dr Miles Mack raised concerns about DMcC and his apparent inability to
self-care "due to cognitive impairment and frailty", with the social work department. On 1
July 2014 (page 907) he attended an out-of-hours clinic and was "a little confused". This is
six days after the execution of the disposition with which I am concerned.
[277]
Dr MacEwan concluded his report in relation to D McC with the statement:
"My opinion therefore is that, on the balance of probabilities it is unsafe to assume
that D McC had capacity to sign the disposition on 25 June 2014." (Page 1305)
Although I am concerned with his facility, not his capacity, this is an opinion with which I
agree. Again, it is notable that, this time the fourth defender, was present at the GP surgery
with DMcC on the occasion of 21 March 2014. Again, I find it incredible that she would
have noticed nothing untoward at this consultation and I conclude that she was lying when
she said that she did not. In my view, given his age at the time the disposition was executed
and his medical difficulties shortly before and shortly after that time the only possible
101
conclusion is that DMcC was suffering from dementia at the time, which caused a resulting
mental weakness. Accordingly, his facility was affected as at the date of 25 June 2014 when
the disposition was signed.
[278]
The second constituent element is circumvention. This is the act of pressurising or
imposing upon a facile individual. As already noted this can be (and often is) established by
inference. At debate Mr MacLeod's position was that the necessary circumvention could be
inferred from the whole surrounding context. The defenders' position was that no acts of
circumvention were averred and this was fatal to the pursuers' case.
[279]
The impression that I formed from the evidence was that the brothers knew the third
and fourth defenders as distant acquaintances for many years. As a result of their mutual
interest in Scottish music they became closer. HMcC and RMcC attended performances
given by the third and fourth defenders at various hotels in the late 2000s. HMcC celebrated
his 80th birthday at the third and fourth defenders home around 22 January 2010
(photograph 10 from the third and fourth defenders Inventory). The third and fourth
defenders, as a result of their closer relationship with the brothers, approached them in 2011
to purchase a plot of land from them to build a house on. From that point on the third
defender pursued the friendship with the brothers as he considered there may be more for
him to gain from it. I infer, from the evidence, that he involved the Reverend Warwick (and
his wife) as his occupation would add a veneer of respectability to matters.
[280]
The factors I draw on in reaching this conclusion by inference are these:
a)
The photographs placing the third and fourth defenders and any of the
brothers together commence with HMcCs 80th birthday in 2010. I find it unlikely
that, if the brothers were attending the home of the third and fourth defenders
regularly prior to this (especially for notable events, such as Christmas celebrations)
102
that there are no earlier photographs (particularly by someone who gives his
occupation as "photographer".
b)
There was a fire at Logie Farm in March 2000. The third and fourth defender
agree they were not in attendance in the aftermath and it was neighbours, rather
than them, that HMcC stayed with. I consider this unlikely, given that they lived
nearby, if they were so close at that time. From these two factors I conclude that their
close relationship only developed from the late 2000s onwards.
c)
I accept the evidence that the brothers all intended and wished the farm to be
left to their distant cousin, Hugh Fraser from Fearn.
d)
I accept the evidence from Dorothy Fraser and Angus Ross that the third
defender (and his family) and thereafter the second defender became far more
involved in the lives of the brothers from 2008 onwards. Prior to then neither close
neighbour was aware of them.
e)
The evidence of Angus Ross, which I accept, was that he considered the third
defender to be "grooming" the brothers. That was his view at the time, not just
when their gift of the farm came to light.
f)
RMcCs subsequent position, both to Helen Fraser and others at a similar time
and since, is that he did not wish to gift the farm to the defenders. Whilst I comment
elsewhere in this judgment on his current reliability, this is a position that he was
expressing when he still had capacity.
g)
The facts themselves. All the evidence is to the effect that these three brothers
wished to remain living on the farm. They wanted to stay together. They did not
want to go into care. They wanted their farm to be sold as one piece and for farming
103
there to continue. None of those four things happened: to my mind this makes it
likely that their wishes were circumvented.
h)
The legal work was not done by an individual who the brothers had chosen
and used for many years; it was done by a solicitor known to and used by the
defenders previously. My view of his shortcomings is made clear elsewhere in this
judgment.
i)
The defenders have come to court and lied about matters. That suggests
there is something improper to be covered up. I infer the circumstances surrounding
the farm being gifted to them is what they seek to cover up.
[281]
The relevant averments on circumvention, which I consider proved are:
i."The third defender befriended the brothers.
ii.The brothers did not instigate the third defender's involvement in their lives.
iii.The third defender introduced the brothers to the first defender at the third
defender's house.
iv.The first and third defender said that they would arrange a good solicitor for the
brothers.
v.The brothers did not require a different solicitor in light of their relationship with
Alpin Stewart.
vi.In or around early 2013 the third defender instructed a different firm of solicitors (A
Fraser and Co.) to act on behalf of the brothers.
vii.The principal solicitor at A Fraser and Co., Alasdair Fraser, was not known to the
brothers.
viii.The brothers did not ask any of the defenders to intervene in their affairs.
ix.The brothers trusted the third defender.
104
x.The brothers did not understand the nature of the document which they were asked
to sign." (all from Condescendence Three).
[282]
Accordingly, in terms of HMcC and DMcC, who were in my judgment facile, I am
clear that they were imposed upon by the first and third defenders. I am clear that there is
sufficient pled on record, as detailed in the preceding paragraph, taken together with a
finding that the brothers did not receive separate and independent advice about the effect of
transferring the farm; and the involvement of Alasdair Fraser did not result in the brothers
receiving separate and independent advice about the effect of transferring the farm (see
paragraph [297] below), to allow me to make a finding of circumvention.
[283]
In relation to the third element, lesion, this is the adverse result or effect of
circumvention. There is no dispute that: "The Farm was disponed for no consideration."
(Condescendence Five). I accept that the brothers wished to bequeath the farm to Hugh
Fraser. I accept the evidence about the estates of the brothers being negatively affected by
the disposition. As a result I hold the third element established. I therefore conclude that
the pursuers have been successful in proving, on the balance of probabilities, that the
disposition signed by the brothers was wrongfully impetrated by fraud, facility and
circumvention on the part of the first and third defenders.
[284]
I should deal briefly with Mr Dunlop's point about lack of involvement in the fraud
or circumvention by the second and fourth defenders. I consider this is answered by Mr
MacLeod's submission referring to the following passage by the Lord Justice Clerk in Taylor
"George Gray is not called as a defender, because he has no interest in the deed. He
is not said to have acted as agent for the parties, nor to have been put forward by
them for the purpose of obtaining the deed. He is not even alleged to have been in
the position of negotiorum gestor . But the averment merely is, that the testator being
weak and facile, George Gray, for purposes unexplained, did use fraud and
105
circumvention to obtain the deed. And the question is, is that a relevant ground of
reduction against parties not implicated in any way in George Gray's fraud? I think it
is, and for this reason, that no party, however innocent, is entitled to take benefit by a
fraud. I should be sorry if there was any doubt as to that."
[285]
This decision is sufficient to dispose of the action, as although I do not find the case
on facility and circumvention made out in respect of RMcC, as it is made out in respect of
HMcC and DMcC the disposition falls to be reduced. However, for the avoidance of any
doubt and given the alternative case on undue influence I should also give my view on that.
Undue Influence
[286]
Undue influence is the misuse of the faith or trust placed by one party in another. It
"The circumstances which establish a case of undue influence are, in the first place,
the existence of a relation between the granter and grantee of the deed which creates
a dominant or ascendant influence, the fact that confidence and trust arose from that
relation, the fact that a material and gratuitous benefit was given to the prejudice of
the granter, and the circumstance that the granter entered into the transaction
without the benefit of independent advice or assistance. In such circumstances the
Court is warranted in holding that undue influence has been exercised."
[287]
In his submissions Mr MacLeod breaks this down to four elements. In his
Mr Dunlop breaks this down to three. Notwithstanding this they agree that what requires
to be considered is the following:
a)
The existence of a relationship of trust between grantor and grantee. The
relationship must have an imbalance of power such that there is a "dominant"
influence by the grantee.
b)
The grant of a material and gratuitous benefit to the grantee to the prejudice
of the grantor.
c)
The grantor has no independent advice.
106
Mr MacLeod submits all three elements are present in this case. Mr Dunlop and the third
defender submit that only b) is present.
[288]
Looking at factor a), Mr Dunlop submits that in Wilson v Watkins [2019] CSOH 44 the
court regarded it as significant that the party seeking to prove undue influence was capable
of independent living and consulting solicitors. The passage is this:
"Here the pursuer may be taken to be a generation older than the defenders. She
was widowed in 2003. However, beyond that there is nothing to suggest that she
was at the relevant date or dates, and indeed now, other than an adult of full
capacity and of at least ordinary intelligence and experience of life. That she was
quite capable of understanding a legal document (and, incidentally, capable of
independent living) is suggested by averments in article V of condescendence."
The facts pertaining to the pursuer there were thus very different to the brothers in this case.
In this case HMcC was suffering from dementia, as previously detailed. In my judgment so
was DMcC. RMcC, in my judgment, had full capacity but he was not a man of "ordinary
experience of life". He led, from all the evidence, a sheltered life spending the majority of
his time in a twenty-five mile radius.
[289]
I consider there was a relationship of trust between the brothers and the first and
third defender as they were friends. The brothers had enough confidence and trust in the
first and third defender to appoint them as their Attorneys. That is a fiduciary appointment.
As Lord Brodie puts it in Wilson:
"As I would see it, a prerequisite of a relationship which might give rise to undue
influence is not simply that it involves a degree of mutual trust but that it involves an
imbalance of power, or knowledge, or experience, or moral or physical strength as
between the parties to the relationship. It is because of that imbalance that the
dominant party effectively owes fiduciary duties towards the dependant party."
In my view it is clear that there was a dominant and ascendant influence by the first and
third defender in respect of the brothers. They were the ones with relative youth and
soundness of mind on their side in so far as HMcC and DMcC were concerned and
107
knowledge and life experience on their side in so far as all the brothers were concerned.
They also appear to have been, by their own admission "dangling a carrot" that they would
only provide support and assistance to the brothers (which they needed), or not leave the
mainland for Lewis (which the brothers did not want) if the farm was transferred to them.
Finally, there is the matter of the first defender's occupation as a minister, "clergyman and
parishioner or penitent" being one of the examples of dominant and ascendant influence
given in Gray. Whilst the brothers were not parishioners of the first defender I have little
difficulty in holding that they would have had additional trust in him as a result of his
occupation. For all of these reasons I consider that factor a) is made out in this case.
[290]
Parties agree the second element, factor b) exists in this case. The third element is the
question of independent advice. The pursuers' position is that the issue is not just whether
the brothers had access to independent advice, but also the extent of that advice. They cite
"It was submitted on behalf of the defender that the case of undue influence was not
made out because the deceased had had the benefit of Mr Flett's [solicitor's] advice
when the codicil was made. I cannot accept that his telephone discussion with Mr
Flett amounted to the proper tendering to him of separate and independent advice
given the evidence that the defender was present and she told the deceased what to
say. His doctor, who witnessed the document, clearly did not feel it appropriate that
he get involved with what it was about. There is no evidence of anyone else giving
the deceased proper objective and independent advice. The case falls, in my view, to
be regarded as one in which the deceased had no separate and independent advice
prior to executing the codicil."
The defender's position is that the involvement of Alasdair Fraser, solicitor, in a situation
where there are no averments that he acted fraudulently means that the brothers had
independent advice.
[291]
I consider that it is appropriate to look beyond the mere fact of Mr Fraser's
involvement to examine the nature and quality of the advice and whether it was proper and
108
independent, per Lord Drummond Young in Horne v Whyte at debate stage, reported at 2004
SCLR 197:
"I do not think, however, that the mere existence of independent advice is by itself
sufficient to hold that undue influence cannot exist. Much will inevitably depend on
the nature and quality of the advice. Thus the advice may extend to whether or not a
bequest should be made, and if so the amount of the bequest; on the other hand it
may be confined to the manner in which a bequest already decided on is to be
implemented. In the former case, the existence of independent advice from, for
example, a solicitor would be of the utmost importance. In the latter case, by
contrast, it might not signify very much. Thus the precise terms of the advice are
critical. The quality and practical effect of the advice may also be important. If, for
example, the advice is given in a rather vague or half-hearted fashion, that may not
be sufficient to overcome the existence of a clearly dominant or ascendant influence."
[292]
I note that in various of the cases cited to me, including Gray v Binnie and Horne v
Whyte, solicitors have been involved, but nevertheless undue influence has been found to
exist by the court. The involvement of the solicitor is described thus by the Lord President
(Inglis) in Gray:
"The pursuer was thus entirely without advice or protection. Mrs Gray, on the other
hand, was assisted by an able and experienced man of business, entirely devoted to
her interests, although made to wear a different aspect in the eyes of the pursuer,
partly from his position as the family solicitor and partly by acting throughout in so
ambiguous a way as to seem to be acting for both parties, when in truth he had
regard only to the interests of one."
[293]
I regret to say that I found it difficult to discern from his evidence what independent
advice Alasdair Fraser gave to the brothers about the transfer of title. I have outlined what I
considered to be five startling aspects of his evidence elsewhere in this judgment. I heard no
expert evidence about whether the actings of Mr Fraser fell below a certain standard and
there was no allegation of negligence on his part. Mr Dunlop submitted that any suggestion
of a conflict of interest or similar is not averred and the only issue before the court on the
pleadings is whether the three brothers received legal advice. He submitted that the "very
narrow factual matrix" pled periled the pursuers cases.
109
[294]
The difficulty for the pursuers in respect of this part of their case is, I imagine, the
fact that two of the brothers are now deceased and RMcC is incapax. In preparing the case
one presumes they have not been in a position to aver (or probably even to know) the nature
and extent of legal advice provided to the brothers by Alasdair Fraser prior to him giving
evidence. They appear to have been operating under a factual misapprehension that Alpin
Stewart was first consulted in relation to the proposed gift of the farm to the defenders and
advised against the arrangement. That is what is averred in condescendence Three. The
pursuers did make calls on the defenders in relation to legal advice; at condescendence Five
they call upon the first and third defenders to aver: "(i) what steps they took (if any) to
satisfy themselves that the Pretended Disposition was in the interests of the brothers; (ii)
what advice they took from independent parties, in that regard.....". These calls went
largely unanswered.
[295]
However, the defenders did make some general averments about the involvement of
Alasdair Fraser. At answer Five for the first defender he avers:
"The brothers instructed their solicitor in connection with this matter unbeknown to
the first defender."
At answer Six the first defender avers:
"Explained that the brothers obtained their own legal advice in relation to their
affairs and in particular the transfer of the farm. The first defender was not involved
with or aware of the brothers' instructions to their solicitor."
At answer Six the third and fourth defenders aver:
"The brothers took legal advice from a solicitor of their choosing, Alasdair
Fraser.....Alasdair Fraser was satisfied that they knew exactly what they wanted to
do, namely to transfer the farm to the defenders for no consideration."
It can thus be seen that the defenders sought to put forward a substantive line of defence to
the pursuers' position that no such advice had been taken. Against this background I
110
consider it is appropriate for the court to consider the nature and quality of the legal advice
provided by Alasdair Fraser, and its practical effect (much of which was led without
objection) but I do also repel the objection by the first and second defenders to lines of
questioning to Fiona Thomson and to Alasdair Fraser.
[296]
The legal position in relation to independent advice is summarised by Lord
Drummond Young in Horne above. After proof Lady Smith in Horne, paragraph 65 put
matters thus:
"It was submitted on behalf of the defender that the case of undue influence was not
made out because the deceased had had the benefit of Mr Flett's [the solicitor's]
advice when the codicil was made. I cannot accept that his telephone discussion
with Mr Flett amounted to the proper tendering to him of separate and independent
advice given the evidence that the defender was present and she told the deceased
what to say. His doctor, who witnessed the document, clearly did not feel it
appropriate that he get involved with what it was about. There is no evidence of
anyone else giving the deceased proper objective and independent advice. The case
falls, in my view, to be regarded as one in which the deceased had no separate and
independent advice prior to executing the codicil."
[297]
I consider we are in a similar position here. Alasdair Fraser appears to be entangled
with the defenders; he was the solicitor for all four defenders before he acted for the
brothers; his actings in relation to the transfer of the farm were instituted by the first and
third defenders rather than the brothers; any meetings with the brothers involved the third
defender being present, albeit sometimes not in the same room; he acted for all parties in the
transfer of the farm; he corresponded with the third defender about matters such as the
value of the property, when these instructions should have come from the brothers. In my
judgment, and having heard his evidence, both his independence and the quality of his
advice are seriously called into question. I consider factor c) is made out. As a result I have
no hesitation in concluding that the legal test for undue influence in relation to this
transaction is made out.
111
Remedies
[298]
Mr MacLeod submitted that it would not be otiose to grant crave 1 of the writ; whilst
he conceded that much of the property disponed to the defenders had been disposed of by
them to third parties in good faith and for market value the terms of an ownership report by
Bowlts, chartered surveyors (the conclusions of which are agreed by paragraph 5 of the Joint
Minute of Admissions) made it clear that certain small portions of land transferred to the
defenders remained in their ownership. As a result he moved for decree in terms of crave 1.
Against that background I grant decree.
[299]
The pursuers no longer seek decree in terms of craves two and three. In relation to
crave four Mr Dunlop submitted it was not competent as the pursuers are three separate
parties and each pursuer has a separate cause of action on the facts and that there should
have been three separate actions. Mr MacLeod replied that this was common property not a
disposition of pro indiviso shares. As a result there was no room for the court to, for
example, reduce the disposition in respect of one party only. As such it was for the pursuers
to determine how to account to each other if crave four were to be granted, and perfectly
competent. I agree. I am satisfied it is appropriate to grant decree in terms of crave four.
[300]
The pursuers ask that expenses be reserved. I shall so do and reserve all question of
expenses meantime.
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