The Sheriff, having resumed consideration of the cause, FINDS IN FACT that:
The parties are as designed in the instance.
The defender is the father and executor dative of William McClung (hereinafter referred to as ‘WM’) who died intestate on 21st November 2007.
At the time of his death WM was the heritable proprietor of West Cottage, Balquhomrie, Leslie, Fife, which the defender gave to him in 1988. The title to the property was in WM’s name. WM also bought some adjacent land with the intention of extending the cottage.
WM worked on oil rigs until about 1994 when he was injured. Thereafter he did not have further paid employment.
The pursuer and WM met in about 1990.
From about 1990 until 2007 the pursuer and WM were involved in a sexual relationship.
In about 1999 the pursuer purchased the house at 100 Tippetknowes Road, Winchburgh, West Lothian. She borrowed some money from WM in order to pay part of the deposit on the purchase price. She took the title to the property in her own name.
From time to time between 1990 and 2007 WM stayed briefly at the pursuer's homes in Tippetknowes Road, Winchburgh, and at the pursuer’s mother’s home in Carluke.
Although from time to time during the relationship the pursuer stayed at West Cottage, Leslie, she lived in Winchburgh and at her mother’s house in Carluke when she was not working and living elsewhere.
Although each stayed in the other’s home from time to time, the pursuer and WM never lived together in the same household.
From 2004 until his death in 2007, WM lived at West Cottage, Leslie, where he was involved in renovation and reconstruction of the building. He enjoyed the work. It did not cause him any stress and he was in no hurry to finish it.
Between 2004 and WM’s death on 21st November 2007 the pursuer and WM were not living together in the same household at West Cottage, Leslie, Fife, or at 100 Tippetknowes Road, Winchburgh, West Lothian.
The relationship between the pursuer and WM was volatile. They fell out and made up frequently.
During their relationship they never went on holiday together.
From about 1990 until 2007 the pursuer and WM attended the pursuer’s family gatherings such as weddings and first communions, but otherwise they did not go out together socially.
The pursuer did not like WM’s family as a whole. Her opinion was WM’s family treated him badly. Her last contact with WM’s family was in 1994. Subsequently she had contact once with WM’s sister, Victoria McClung, in about 2004.
On several occasions during the course of their relationship, the pursuer threatened WM with physical violence. She threatened to have one of her brothers-in-law “put on” him; to get her brother-in-law to “have a word with” him; and to have her mother “get all the heavy mob out, everybody involved.” The threats caused WM to be apprehensive and stressed.
WM was so apprehensive about the pursuer’s threats that in about September 2007 he had audio recording equipment installed at West Cottage in order to record the pursuer’s telephone calls to him.
Productions 6/5/1 and 6/5/2 of process are audio tapes on which are recorded conversations between the pursuer and WM during telephone calls made by the pursuer to WM between about September 2007 and WM’s death. Productions 6/5/3 and 6/5/4 are accurate transcripts of those tape recorded conversations.
During the recorded conversations:
(i) the pursuer made it clear to WM on several occasions that their relationship was finished;
(ii) the pursuer and WM discussed arrangements for uplifting some of the pursuer’s belongings and her car from West Cottage; and
(iii) WM told the pursuer that he was delighted that the relationship was finished.
The relationship between the pursuer and the defender ended in about September 2007. WM was glad that it had ended. The pursuer knew that it had ended.
WM returned a key to the pursuer’s house.
WM wanted to extricate himself from all involvement with the pursuer as amicably as possible.
In preparation for the collection of the pursuer’s car and belongings from West Cottage, at the pursuer’s request WM put articles belonging to the pursuer into the pursuer’s car, cleaned the car and charged its battery.
Notwithstanding that their relationship was at an end, in October 2007 WM went to the pursuer’s home in Winchburgh where he agreed to look after a dog belonging to two of the pursuer’s neighbours while they were on holiday.
Notwithstanding that their relationship was at an end, on 19th November 2007 WM drove the pursuer from her home in Winchburgh to a work placement in Edinburgh.
WM died suddenly on 21 November 2007.
WM’s family did not tell the pursuer of WM's death. WM's family did not have her address or telephone number. In any event, they knew that the relationship had ended prior to WM’s death.
The pursuer had deliberately left her car at WM's home. As at the date of proof it was still there. The pursuer hoped to revive her relationship with WM.
On 12 December 2007 the pursuer sent a text message to one of WM's mobile phones, which message is reproduced in notes comprising 6/5/6 of process. The message read:
‘Bring my car over – we can then put a complete closure on this unless of course you want Pete to collect this Sat.’
On 13th December 2007 the pursuer sent a text message to each of WM’s two mobile phones, which messages are reproduced in notes comprising 6/5/6 of process. The messages concerned collection of her car from West Cottage. One of them contained the sentence:
‘Please after this leave me alone.’
The three text messages reproduced in the notes comprising 6/5/6 of process were the only text messages sent by the pursuer to WM after his death.
The pursuer only became aware of WM's death when the police contacted her in January 2008 and asked her to make arrangements to uplift her car from West Cottage.
After WM’s death the pursuer did not make any enquiry concerning the reason for his silence, his welfare or his whereabouts.
The pursuer and WM did not have any children together. During their relationship the pursuer became pregnant. She had the pregnancy terminated.
When the defender sold his farm he gave money from the proceeds of sale to members of his family, including WM.
During the course of the relationship, the pursuer borrowed some £8,000 from WM, of which only about £800 has been repaid.
WM stayed in the relationship in the hope that the pursuer would repay the money that she owed to him. Eventually he decided to write off the money, move on with his life and finish renovating his home.
The pursuer and WM did not enter into any financial arrangements such as might be expected in a relationship in which a couple have made an unequivocal commitment to lifelong mutual support.
FINDS IN FACT AND LAW that:
1. Immediately before his death on 21st November 2007 William McClung was domiciled in Scotland.
2. This Court has jurisdiction.
3. Immediately before his death William McClung and the Pursuer were not living together as if they were husband and wife.
4. Immediately before his death William McClung and the Pursuer were not cohabitants as defined in Section 25 of the Family Law (Scotland) Act 2006.
FINDS IN LAW that:
The Pursuer not having been a cohabitant of William McClung as defined in Section 25 of the Family Law (Scotland) Act 2006 immediately before his death on 21st November 2007 is not entitled to payment of a capital sum out of his net intestate estate in terms of Section 29 of the said Act and the Defender should be assoilzied from the First Crave of the Initial Writ.
THEREFORE REPELS the First plea in law for the Pursuer; SUSTAINS the Third plea in law for the Defender; ASSOILZIES the Defender from the First Crave of the initial writ; on joint motion RESERVESmeantime the question of expenses insofar as not already determined; and APPOINTS the parties to be heard thereon at
on 2010 within the Sheriff Court House, Chambers Street, Edinburgh.
(I) The Disputed Issue
Section 29(2)(a)(i) of the Family Law (Scotland) Act 2006 provides that if a man and woman were cohabiting immediately before one of them dies intestate, the surviving cohabitant may seek payment of a capital sum out of the deceased cohabitant’s net intestate estate.
William McClung (hereinafter ‘WM’) died intestate on 21st November 2007. The pursuer raised an action against the defender (WM’s father and executor-dative) for payment of a capital sum of £250,000 out of the deceased’s net intestate estate, averring that immediately before his death she was the deceased’s cohabitant.
The defender resists the pursuer’s claim on the ground, inter alia, that the pursuer and the deceased were not cohabitants as defined in section 25 of the 2006 Act.
The case called before me for preliminary proof before answer, restricted to the issue of whether immediately before his death WM and the pursuer were cohabitants for the purposes of section 29 of the Act.
(II) The Witnesses
For the Pursuer
The pursuer, Jacqueline Carrigan, is 46 years old and resides at 100 Tippetknowes Road, Winchburgh, West Lothian. She gave as her occupation, “English teacher.” She deponed that she and her “late partner, William McClung, cohabited in a relationship” from June 1990 to 21st November 2007. They lived in her house at 100 Tippetknowes Road, Winchburgh, West Lothian and at West Cottage, Leslie, Glenrothes, which belonged to the deceased William McClung (hereinafter, ‘WM’).
The pursuer deponed that she and WM “…mostly were together, mostly at West Cottage.” Although she accepted that they had tiffs, put shortly she asserted that they had a stable, long-term relationship during which they lived together as if they were man and wife. She did not get on with WM’s family. They did not see her at West cottage because when she knew that they were to visit WM there, she prepared tea, etc., and left the house.
I regret to say that did not find the pursuer to be either credible or reliable. On the contrary, from her demeanour and from her responses to questions I found her to be careless; untruthful; at times self-contradictory and evasive; and wholly unconvincing. Accordingly I reject her testimony except insofar as unchallenged and coinciding with other evidence that I accept.
Mrs. Kathleen Feeney is the pursuer's sister. She is 47 years old, a small business owner, and resides at 15 Glenshee Gardens, Carluke. I did find her to be credible or reliable. Although she saw a great deal of WM in the early 1990s, she moved away from Scotland for about six years. She saw WM at family functions. She did not stay “in the same town” as the pursuer and WM. She claimed to phone them constantly. If she could not reach them at one house, she could reach them at the other. She was vague about how often the pursuer and WM fell out, and for how long.
My impression was that the witness knew very little about the relationship in latter years and was attempting to tailor her evidence to what she thought might suit the pursuer’s case. Accordingly I reject her testimony except insofar as unchallenged and coinciding with other evidence that I accept.
Mrs. Sarah Anne Quinton is the pursuer's mother. She is 70 years old and is retired. She lives at 7 High Meadow, Carluke. I cannot regard her as a reliable witness and I am sorry to say that I have some doubt about her credibility. My impression was that her testimony depended essentially on what the pursuer told her about the relationship with WM. She was surprised at some of the things said by the pursuer during recorded telephone conversations with WM, but asserted that some of them reflected the nature of the relationship between the pursuer and WM, which she described as “…friendly today and not so friendly tomorrow.” I am sorry to record that at times she seemed to me to be rather partisan. Being unable to rely on her evidence and having doubts about her credibility, I reject her testimony except insofar as unchallenged and coinciding with other evidence that I accept.
Francis Kynoch is 70 years old. He is retired and lives at 103 Tippetknowes Road, Winchburgh, West Lothian. He is a neighbour and good friend of the pursuer, whom he has known for 20 years or more. He first met WM about 17 years ago in Winchburgh. His impression was that the pursuer and WM "were a couple." They lived at 101 Tippetknowes Road, Winchburgh. Otherwise the pursuer would be with WM at his cottage in Fife.
He deponed that he last saw WM at the pursuer’s house in Winchburgh in October 2007. He was going on holiday for two weeks (although he could not remember if his holiday began on the first or second week of October) when WM and the pursuer agreed to look after his dog. While he was on holiday he telephoned the pursuer's Winchburgh number to find out how the dog was. She was not in, therefore he called WM's cottage. He did not speak to the pursuer. WM told him that the pursuer was at a car auction. The witness deponed that he would be unable to dispute evidence to the effect that during the holiday WM stayed at the pursuer’s house at Winchburgh on the 10th of October, but no other night during the witness’s holiday.
While I accept that the witness was honest, and that he was reliable on the narrow issue of events occurring around the time of his holiday in 2007, I do not regard him as reliable on the greater disputed issue, viz. his impression that the pursuer and WM were a couple in the sense of living together as if they were husband and wife. That impression is contradicted by an overwhelming body of evidence which I accept, including the testimony of people who were in a better position to know if the pursuer and WM were living together in 2007.
Mrs. Mary Finlayson Kynoch is 71 years old. She is retired and lives at 103 Tippetknowes Road, Winchburgh. Like her husband, Francis Kynoch, he is a good friend of the pursuer, whom she has known for 17 years. She considered that the pursuer and WM had a very close relationship. She last saw WM in October 2007. She was going on holiday and she and her husband took their dog to the pursuer at 100 Tippetknowes Road, Winchburgh. While they were on holiday her husband called WM at his cottage to enquire about the dog. He spoke to WM by telephone.
While I accept that the witness was honest, I do not regard as reliable her impression that in October 2007 the pursuer and WM had a very close relationship. Her impression is contradicted by an overwhelming body of evidence which I accept, including the testimony of people who were in a better position to know if the pursuer and WM were living together in 2007.
For the Defender
The Defender, Thomas McClung, is 70 years old. He is a retired farmer and lives at Nevay, Drimmie Road, Letham, Angus. On 28th December 2007 the Sheriff at Kirkcaldy appointed him executor-dative in the estate of his son, WM, who died intestate on 21st November 2007. I found him to be a straightforward, honest, intelligent, careful, and reliable witness. At one stage even the pursuer said that she thought he was “really nice.” I have no hesitation in preferring his testimony to that of the pursuer and her witnesses.
John Paul is 53 years old. He is a farmer, residing at Meikle Balquhomrie Farm, Leslie. To get to the main road from his house, he has to pass East Cottage and West Cottage, Leslie. I found him to be an honest and reliable witness.
Andrew Johnston is 41 years of age. He is a security systems engineer, residing at 111 Main Street, Townhill, Dunfermline. I found him to be a credible and reliable witness.
John Baird is 54 years old. He is a farmer, residing at Kirkness Farm, Lochgelly, Fife. I found him to be a credible and reliable witness.
Mrs. Victoria McClung or Alexander is 42 year old. She is a nursery manager, residing at South Draffin, Letham, Forfar. She is the defender’s daughter and WM’s sister. I found her to be a truthful and reliable witness.
Mrs. Isobel McClung, aged 71 years, is the wife of the defender, whom she married in 1979 and with whom she resides at Nevay, Drimmie Road, Letham. I found her to be an honest and reliable witness.
Mrs. Marcella Macpherson or Macdonald is 52 years old and a staff nurse. From about September 1990 until about 1996 she resided at East Cottage, Meikle Balquhomrie, Leslie, which adjoins West Cottage in which WM lived. During that period she “knew of” the pursuer, whom she “sort of” recognized in court. I found her to be a credible and reliable witness.
Anne Macdonald is 32 years old and resides at 6 Aulder Lane, Glenrothes. I found her to be a credible and reliable witness.
Robert Brannan is 70 years of age. He is retired and lives at Hazeldene, Strathenry, by Leslie. I found him to be credible and reliable.
Edwin Ivan Wood is 71 years old and lives at Newbiggin, Navaty Farm, Ballingry. He is WM’s uncle. I found Mr. Wood to be credible and reliable.
Affidavit of Paul Donnachie (16.7.10)
A copy of the affidavit of Paul Donnachie is at Appendix (A) to this note. The pursuer did not have an opportunity to cross-examine Mr. Donnachie, nor have I had an opportunity of assessing his demeanour, etc. Although in general terms the affidavit of Paul Donnachie confirms much of the testimony of the defender’s witnesses which I have accepted, I am not prepared to attach any significant weight to it. And insofar as the affidavit alleges criminal conduct on the part of the pursuer, I have ignored it completely.
(III) The Relevant Law
Section 29 of the Family Law (Scotland) Act 2006 provides so far as relevant that:
(1) This section applies where—
(a) a cohabitant (the "deceased") dies intestate; and
(b) immediately before the death the deceased was—
(i) domiciled in Scotland; and
(ii) cohabiting with another cohabitant (the "survivor").
(2) …on the application of the survivor, the court may—
(a) …make an order—
(i) for payment to the survivor out of the deceased's net intestate estate of a capital sum of such amount as may be specified in the order;
Section 25 of the 2006 Act provides so far as relevant that:
1) In sections 26 to 29, “cohabitant” means either member of a couple consisting of
(a) a man and a woman who … were living together as if they were man and wife…
2) In determining for the purposes of any of sections 26 to 29 whether a person (“A”) is a cohabitant of another person (“B”), the court shall have regard to –
(a) the length of the period during which A and B … lived together;
(b) the nature of their relationship during that period; and
(c) the nature and extent of any financial arrangements … which subsisted during that period.
In the Shorter Oxford English Dictionary the meaning of ‘immediately’ includes ‘in direct connection or relation to’ and ‘with no person, thing or distance intervening’.
In my opinion, before the pursuer can be regarded as a surviving cohabitant for the purposes of the statute she must prove, inter alia, that she and the deceased lived together as if they were husband and wife for a continuous period which subsisted until the death.
Concerning the element of living together in the same household, Mr Gibb conceded on behalf of the defender that if a survivor were working away from home (for example on a teaching placement or on a tour of duty with the armed forces) such an absence would not interrupt the period of cohabitation if the couple were truly living together as if they were husband and wife during the period immediately preceding the death.
In my opinion the critical factor is whether such a relationship normally and habitually existed during the whole of the period identified, from the beginning of that period until the death. In considering whether the pursuer has proved her case, the Court must consider all aspects of the relationship, including the matters specified in section 25 of the 2006 Act.
(IV) Submissions by the Pursuer
The pursuer made the following submissions:
The pursuer and the deceased met in June 1990 and began a relationship with each other. At the time the pursuer resided at her flat at 101 Tippetknowes Road and the deceased at West Cottage, Leslie, Glenrothes.
Until about 1998 the deceased was employed in the oil industry and worked two weeks onshore and two weeks offshore. And then the relationship developed from then, after which they generally stayed at her flat at 101 Tippetknowes Road.
From about 1994 the pursuer and the deceased lived together at whichever house belonging to either of them was most convenient for the pursuer’s work or studies.
They lived together as though they were husband and wife.
Between September/October 2007 the pursuer and deceased were living mostly at West Cottage. They also spent some time together at the pursuer’s mother’s home, as she was on holiday, visiting her son in Spain. The deceased returned to West Cottage after a few days to work on a project which he was undertaking. The pursuer stayed on at her mother’s house.
At some point she had a tiff with the deceased, which was eventually resolved.
On 19th November 2007 the deceased drove the pursuer to her new placement (being a live-in maternity placement) with the intent of collecting her on her day off, Saturday 24th November 2007.
Unfortunately the deceased died on Wednesday 21st November 2007.
Had pursuer not been undertaking this live-in position, she would have been with the deceased at one of their properties.
(V) Submissions for the Defender
For the defender, Mr. Gibb produced written submissions containing proposed findings in fact and proposed finding in fact and law (reproduced in Appendix (B) to this note) and the following note on credibility:
I would simply submit on behalf of the defender that the pursuer was absolutely and utterly lacking in credibility in her evidence and testimony before the Court. That was particularly evidenced in respect of her attitude relating to the transcript 6/5/3 of process. Having earlier agreed the accuracy of the transcript, and it being put to her in detail, she then denied major portions of the transcript. Following on and being given the opportunity and taking the opportunity of listening to the transcript again, she returned to Court and accepted the accuracy of the transcript. Her earlier denials of the accuracy of the transcript were untruthful. Further, in respect of many aspects of her evidence where she was in conflict with evidence given by the defender and his witnesses, it is clear that the evidence on behalf of the defender and his witnesses should be accepted.
The Law is contained in the Family Law (Scotland) Act 2006 Sections 25-29 and in particular the claim is founded on Section 29. In determining whether a couple are living together as if they were husband and wife, the Court requires to take in to account the following factors:-
(a) whether the parties have had a sexual relationship;
(b) whether they lived together in the same household;
(c) the nature of their financial arrangements;
(d) the stability of the relationship;
(e) whether they have children or have accepted children as part of their household; and
(f) whether they appear to be a couple to their friends and members of the public.
In respect of these various sub-paragraphs I would comment as follows:-
(a) It is not in dispute that the parties had a sexual relationship;
(b) The parties did not live together in the same household. That is not in dispute. In that circumstance, and standing the fact that they retained their separate households and lived in them, there is a particular onus on the pursuer to show that albeit they owned and lived in 2 properties, that is in effect the same household;
(c) there was no financial arrangement between the parties. They did not mix their finances. In particular the opposite is the case, namely that there is an acceptance that the pursuer borrowed money from WM;
(d) the relationship was particularly unstable and that is evidenced by the whole evidence in the case and the pursuer's own testimony;
(e) there were no children; and
(f) there was no evidence whatever in the proof that the pursuer and WM appeared to be a couple to their friends and members of the public.
In all these circumstances, I have no hesitation in submitting to the Court that the pursuer's evidence was particularly untruthful. In these circumstances, I would invite the Court to prefer the evidence of the defender and his witnesses. They all gave evidence in a very careful and controlled manner, it was a particularly difficult time as the Proof followed on the sudden death of WM at a very early age, and no particular attack was made by the pursuer on the credibility during the course of their evidence.
(VI) Did the Pursuer and WM live together as if they were husband and wife immediately before WM’s death?
In considering whether the pursuer and WM lived together as if they were husband and wife for an identifiable period immediately before WM’s death I have attempted so far as possible to follow the statutory framework. I have considered:
(A) the length of any such period of cohabitation;
(B) the nature of their relationship during any period of cohabitation and, in particular,
(i) whether they lived together in the same household;
(ii) whether their relationship was sexual;
(iii) the stability of their relationship;
(iv) whether they had children;
(v) whether they appeared to be a couple to friends and members of the public; and
(C) the nature and extent of any financial arrangements which subsisted during any period of cohabitation;
Inevitably, the some of these elements overlap.
For the reasons given below my conclusions are that the pursuer and WM never lived together as if they were husband and wife; they certainly did not do so immediately before WM’s death; and, therefore, they were not cohabitants for the purpose of section 29 of the 2006 Act. Accordingly I have assoilzied the defender from the crave for payment of a capital sum out of WM’s net intestate estate.
Given that the defender is unrepresented and that the notes of evidence have not been extended, I have quoted from testimony and productions more often and more extensively than usual.
(A) Length of any period of cohabitation
The first hurdle for the pursuer is to identify and establish a period of cohabitation which subsisted until immediately before WM’s death. The pursuer’s position is that she and WM “cohabited in a relationship” from June 1990 until WM’s death on 21st November 2007. In other words, as I understood the pursuer, she asserts that the relevant period of cohabitation subsisted from about June 1990 until WM’s death in November 2007.
The defender’s position is that although the pursuer and WM had a sexual relationship for some 17 years, the relationship was volatile and they fell out with each other frequently. Although each lived in the other’s house from time to time, they never lived together as if they were husband and wife at any time. And they certainly did not do so immediately prior to WM’s death, the relationship having ended in about September 2007.
For the reasons set out below my conclusion on the evidence is that the pursuer has failed to prove any identifiable period during which the pursuer and WM were living together as if they were husband and wife. This issue is linked, inter alia, to the issue of whether or not the pursuer and WM were living together in the same household for an identifiable period immediately before WM’s death. I have set out below my reasons for rejecting the pursuer’s contention that she and WM lived together in the same household immediately before the death. In addition I have commented on other aspects of their relationship, including its instability, and I have given reasons for concluding that the relationship had ended before WM’s death.
(B) Nature of the relationship during any period of cohabitation