Testamentary writing purporting to gift house to grandson not enforceable against executor, judge rules

A judge in the Court of Session ruled that the pursuer “failed to prove that the deceased entered into a binding promise” to convey the house to him by way of gift.

Lord Tyre heard that the pursuer, Michael Alexander, was the grandson of the late Mrs Hazel Moir, who prior to her death in November 2010 executed a number of wills and other documents of a testamentary nature.

The deceased and her late husband William Moir lived with their three children, Audrey Smith, the pursuer’s mother Irene MacDonald, and the defender Helen Cowie at a property in Aberdeen.

But during the 1990s and 2000s, there was a deterioration of the relationship between Mrs MacDonald and the pursuer on the one hand and Mrs Smith and the defender on the other, due to Mrs MacDonald’s strong determination that the family home in Aberdeen should pass to her or to her son, and the defender’s equally strong determination that it should not.

In September 2000, the deceased signed, in presence of a subscribing witness, a pro forma partly printed will form bequeathing £10,000 plus interest to Mrs Smith, the house at 24 Cairncry Road to the pursuer’s mother Mrs MacDonald and a sum representing the proceeds of sale of a flat in Aberdeen to the defender.

But the court was also told that in the latter years of her life, the deceased’s mental health deteriorated and that she was diagnosed with dementia in 2003.

In December 2002, the deceased signed the following typewritten document in the presence of a witness who also subscribed: “I, Mrs Hazel Annie Margaret Moir, residing at 24 Cairncry Road, Aberdeen, AB16 5DP, wish to give the property known as Twenty four Cairncry Road, Aberdeen to my Grandson, Michael Alexander MacDonald as his very own.”

The document added that: “I have promised to give him this house for many years because of the work he has done in looking after the property and the kindness he has always shown to me.”

The principal issue was whether this document, referred to in the pleadings and at proof as “the writing”, constituted an enforceable promise to make an inter vivos gift of the deceased’s house in favour of the pursuer, and if so, whether the promise became binding at a time when the deceased had capacity to make the gift.

The pursuer sought declarator that he was “gifted” the property at 24 Cairncry Road by the deceased and that the defender as the deceased’s executrix nominate was obliged to convey the property to him.

He also sought a decree ordaining the defender to execute and deliver a valid disposition of the house within 28 days of the date of decree, or, alternatively, for payment to him by the defender of £160,000 by way of damages.

On the hypothesis that the writing was apt to oblige the deceased and, consequently, the defender as her executrix to dispone the house to the pursuer, the defender counterclaimed for reduction of the writing on the ground that it was vitiated by the exertion of “undue influence” by the pursuer upon the deceased.

However, the judge held that the writing was not enforceable against the defender.

In a written opinion, Lord Tyre said: “In my opinion, the writing did not create an obligation of the deceased to perfect an inter vivos gift of the house to the pursuer. Adopting Stair’s categorisation, I do not consider that the deceased’s act of will passed beyond resolution to engagement.

“I reach this view in the first instance by construing the words of the writing itself. ‘I …wish to give’ is the language of resolution, ie expression of intention, and not of disposal or immediate commitment to disposal. ‘I have promised to give him this house for many years…’ is no more than a description of something that may or may not have occurred in the past, and not an expression of a current promise or commitment.

“Taken on its own, the writing says no more than ‘It is my present intention to make a gift of the house to ’. The possibility is left open that at some future time, prior to taking any step to perfect the gift, the deceased might change her mind and no longer wish to give the house to the pursuer.”

The judge added that while he was prepared to accept the pursuer had developed a “closer relationship” with his grandmother than the other grandchildren, he was not persuaded that that relationship was so much closer that the deceased would oblige herself, in effect, to “disinherit everyone else” in order to make a gift of the house to her grandson.

Lord Tyre also considered that it was “highly significant” that the deceased had instructed the preparation of two wills, in which “no mention” was made of leaving the house to the pursuer.

He said: “If she had determined to implement her expressed wish to give her house to the pursuer after her death, she had ample opportunity to do so by making appropriate provision in a will. The fact that she did not do so is, in my opinion, a strong indication that her desire to benefit the pursuer had not achieved the status of obligation.”