[2015] CSOH 101




In the cause






Pursuer:  Beynon;  Drummond Miller LLP

Defender:  Francis;  Anderson Strathern LLP

29 July 2015


[1]        The pursuer is a grandson of the late Mrs Hazel Moir (“the deceased”), who died on 23 November 2010.  On 21 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 Twenty four 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.  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 is 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.  If so, there is a subsidiary issue of whether the promise became binding at a time when the deceased had capacity to make the gift.

[2]        The case came before me for proof before answer.  Evidence was given by the pursuer and, on his behalf, by Mr Alexander Reid, the witness to the above document; by the pursuer’s mother Mrs Irene MacDonald; and by Mrs Mary Hadden, a social care manager.  Evidence was also given by the defender and, on her behalf, by Mr Philip Dawson, solicitor and by Dr Thomas McEwan, consultant in old age psychiatry.  I accept the evidence of Mrs Hadden, Mr Dawson and Dr McEwan as wholly credible and reliable.  I comment below on the evidence of the other witnesses.


Factual background

[3]        The deceased was born on 18 January 1923.  At one time she and her late husband William Moir operated a licensed restaurant business in Banchory, Aberdeenshire.  They subsequently resided together in the house at 24 Cairncry Road, Aberdeen and the deceased continued to live there at the time of the events with which this action is concerned.  The deceased and Mr Moir had three children, namely Mrs Audrey Smith, the pursuer’s mother Mrs Irene MacDonald, and the defender.  The pursuer, who was born on 19 August 1977, is Mrs MacDonald’s only child.  Mrs Smith and the defender each have three children.  Mr Moir died in 1987.

[4]        In the latter years of her life, the deceased’s mental health deteriorated.  The following information is derived from a report provided on 19 July 2012 by Dr McEwan to solicitors acting for the pursuer.  In July 2003 the deceased was seen by a community psychiatric nurse and described short term memory problems.  She underwent an assessment for dementia in September 2003.  Dr McEwan diagnosed dementia, with cerebrovascular disease and alcohol related brain damage as contributory factors.  Dr McEwan advised the deceased and her daughters to consider the possibility of executing a continuing power of attorney but raised the question of her capacity to do so.  In March 2005, Mr Dawson sought Dr McEwan’s opinion as to whether the deceased had the capacity to grant a continuing and welfare power of attorney.  Having seen the deceased along with Mr Dawson, Mrs Smith and the defender, and having spoken privately to the deceased, Dr McEwan formed the view that she did not seem to understand the concept of power of attorney although she spoke repeatedly about the need to make a will.  Dr McEwan concluded that he was not satisfied that the deceased had the capacity to appoint an attorney.  In April 2006, however, she did grant a power of attorney in favour of the defender, which she subsequently revoked.  In August 2006, the deceased was again referred to Dr McEwan’s department and it was noted that her dementia had progressed slightly.  The focus of the Social Work Department then shifted to appointment of a guardian.  In 2007 a financial guardian was appointed.  Legal proceedings for appointment of a welfare guardian had not been concluded by the time of the deceased’s death.

[5]        From his early childhood, the pursuer had a close relationship with his grandmother.  During his school days he visited her (and his grandfather, while he was alive) frequently at weekends, during holidays, and sometimes during the school week.  They often spent weekends together, along with other family members, at a caravan kept at Crathes.  After he left school the pursuer embarked upon various courses of further and higher education which appear still to be continuing.  He studied at colleges in Aberdeen and Fraserburgh and spent much of his time living with the deceased.   The pursuer described his relationship with the deceased as very good.  He helped her in the house, including carrying out building and repair work.  The deceased looked after the pursuer and cooked his meals.  She made gifts in his favour including the caravan to which I have referred, a shotgun and a dress kilt outfit. According to the pursuer, the deceased often used to tell him that she wanted him to have her house.   He assumed that he would not get it until after her death because she had few other assets of value and nowhere else to live.  For her part, the defender accepted that the pursuer had a close relationship with the deceased and spent more time with him than with her other grandchildren, but did not agree that he was the deceased’s “favourite” or that her relationship with the others – or with her great-grandchildren – had been less close.

[6]        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, to the extent that they no longer speak to one another.  Having heard the evidence of Mrs MacDonald and the defender, it is clear to me that one of the principal causes of the falling out has been Mrs MacDonald’s strong determination that the house at 24 Cairncry Road should pass to her or to her son, and the defender’s equally strong determination that it should not.  This conflict may to some extent have had its roots in a belief of Mrs MacDonald, mentioned by her in the course of cross-examination, that her father had intended her to get the house.  It is also apparent that the deceased became a reluctant participant in this conflict, and was subjected from time to time to persuasion by one or other of the protagonists to bequeath her estate in a particular way.  One of the defender’s purposes in obtaining a power of attorney was to secure the removal of the pursuer from the house, but as a consequence of the deceased’s revocation of the power of attorney, that purpose was not achieved.   He continued to reside there at the time of the proof.  Mrs MacDonald and the defender both professed to have acted during the deceased’s lifetime with her best interests at heart.  Mrs MacDonald was adamant that those best interests required the deceased to continue to live in her own house, and vehemently resisted suggestions by other members of the family and by care workers that the deceased might be better looked after in a residential home.  The defender visited the deceased on a regular basis (or, as the pursuer would have it, “when it suited her”) to assist the deceased with her personal care and her household tasks.  The deceased continued to live in the house until the last three months of her life when she was moved to a care home.


The deceased’s testamentary dispositions

[7]        During her lifetime the deceased executed a number of wills and other documents of a testamentary nature.  On 8 September 2000, she 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 Mrs MacDonald, and a sum representing the proceeds of sale of a flat in Aberdeen to the defender.  These legacies were stated to be “to uphold my late husband William Moir’s wishes”.  The residue was left to Mrs MacDonald.  Following an objection by counsel for the pursuer, no evidence was led regarding this document and I place no weight upon it.

[8]        During 2001, the deceased indicated to Mr Dawson that she wished to change her will and was not happy with what she had previously signed.  On 15 October 2002, the deceased delivered a manuscript letter, in the form of a will, to Mr Dawson’s office.  In terms of the letter, Mr Dawson was appointed as executor and directed to pay a legacy of £10,000 plus interest to Mrs MacDonald, to sell the house, and to divide the residue of her estate among Mrs Smith, Mrs MacDonald and the defender in equal shares.  The letter was signed but not witnessed or dated.  Mr Dawson wrote to the deceased indicating that the letter did not have testamentary validity as it stood.  Thereafter he had two meetings with the deceased and, on her instructions, prepared a will for her signature which was in terms similar to the letter except that the instruction to sell the house was omitted, possibly because Mr Dawson advised the deceased that there was no need for this to be specified.  The will was signed by the deceased on 4 December 2002 in the presence of a member of Mr Dawson’s staff as a witness.

[9]        On 28 March 2006, the deceased executed a will which appears to have been prepared on her instructions by another solicitor, Mr Robert Paterson.  This will appointed the defender as her executor and bequeathed her estate in equal shares to the defender (whom failing, her husband), Mrs Smith (whom failing, her husband), and Mrs MacDonald (whom failing, the pursuer).  This is the will that was produced by the defender to obtain a grant of confirmation in her favour as the deceased’s executor.  In addition to the house, the confirmation discloses estate consisting of sums in bank accounts amounting in total to just under £30,000.


“The Writing”

[10]      The circumstances in which the Writing came into existence were narrated by the pursuer and Mrs MacDonald as follows.  At some time during the spring of 2002, the deceased visited Mrs MacDonald at her home in Banchory.  The pursuer was staying there at the time.  He had recently acquired a new computer.  The deceased was interested in the computer and wished to see how it worked.  She had had previous typing experience while running the restaurant business.  According to the pursuer, the Writing was typed on the computer by both himself and the deceased.  The deceased did not sign the Writing at that time but took it away with her when she returned home to 24 Cairncry Road.

[11]      On 21 December 2002, the deceased signed the Writing in the presence of a friend, Mr Alexander Reid.  Mr Reid did not read the document.  According to his evidence he did not need to because he was already well aware that the deceased wanted the pursuer to have the house because he looked after her.  In cross-examination, Mr Reid agreed that he understood the deceased to have meant that the pursuer would have the house after her death.  The deceased then proceeded to hand over the signed and witnessed Writing to the pursuer at or about Christmas 2002.   This took place at Mrs MacDonald’s house in Banchory where the pursuer was staying.  The pursuer put it in an envelope with various other documents, sealed the envelope and gave it to Mrs MacDonald for safe keeping. 

[12]      On 24 August 2006, the deceased, Mrs MacDonald and the pursuer met Mr Dawson at his office.  Details of the meeting were recorded by Mr Dawson in a contemporaneous file note.  So far as concerns the Writing, Mr Dawson’s note reads as follows:

“…Irene then asked Mrs Moir if Mrs Moir wanted to hand over the sealed brown envelope which was addressed to ‘Michael Alex McDonald’.  Mrs Moir [after] some vacillation confirmed that she did.  PGD asked Mrs Moir if she wanted to open it to go through the documents.  She said that she did.  PGD asked her if it would be in order for this to be done in Irene and Michael’s presence or did she want them to leave.  She wanted them to stay.  PGD then opened the envelope and found what appeared to be a photocopy of a Will dated 4 December 2002, and another copy homemade will dated 8 September 2000.  PGD advised that the principal documents would have been handed over to Mrs Cowie in October 2005.  Also there was a lair certificate for Laurencekirk Cemetery, and Mrs Moir’s marriage lines and birth certificate.  She wanted these kept with PGD.  There was also a typed document signed by Mrs Moir on 21 December 2002 and witnessed by Alexander B Reid of [address] which was a letter signed by Mrs Moir wishing to give the property at Cairncry Road to Michael as his own.  PGD asked if she was happy with this and she said yes.  PGD advised her however that this appeared to be an expression of wish about the house, and it would appear that she had not done anything else since that to actually transfer the title.  She said that it was intended only to be opened on her future death.  PGD advised that its validity very much depended on whether or not she had made a Will subsequent to the 21 December 2002, and also whether her house was still in her name at the time of her death.  PGD confirmed that these documents would be put in his safe.  PGD advised her that unfortunately, as a result of the Doctors assessment of her, he would have some difficulties in taking her instructions to carry out work on her behalf…”


The accuracy of this file note was not challenged.

[13]      The Writing did not, however, remain in Mr Dawson’s possession for long.  A few days later the pursuer consulted one of Mr Dawson’s colleagues and was advised that the defender would be entitled to obtain the Writing from Mr Dawson and could then, if so minded, destroy it.  The pursuer accordingly, without arranging an appointment, went with the deceased to Mr Dawson’s office on 29 August 2006 and requested “with her permission”, as he put it, that the Writing be returned to them.  The envelope and all of its enclosures were handed over by Mr Dawson’s secretary, and the deceased signed a receipt for them.  From that time the Writing was kept with the other enclosures at Mrs MacDonald’s house in Banchory.  After the deceased died, the pursuer handed over the Writing to the solicitor instructed by the defender in connection with the winding up of the deceased’s estate.


Orders sought by the parties

[14]      The pursuer concluded for:

(i) declarator (a) that he was “gifted sole title to” 24 Cairncry Road by the deceased and (b) that the defender as the deceased’s executrix nominate was obliged to convey the property to him; and

(ii) decree ordaining the defender to execute and deliver a valid disposition of the house within 28 days of the date of decree, failing which to authorise and ordain the Deputy Principal Clerk of Session to execute such a disposition; or, alternatively, for payment to him by the defender of £160,000 by way of damages.

At the close of the proof counsel for the pursuer sought and was granted leave to delete the words “sole title to” from the first conclusion.

[15]      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.


The first issue: Did the Writing effect an enforceable gift of the house to the pursuer?

[16]      As a preliminary matter it is necessary to categorise the Writing.  It is common ground between the parties that it was not a donation mortis causa.  The pursuer did not contend that it was a testamentary writing, no doubt because this would be of no practical use to him given the fact that the deceased executed a later will whose validity is not challenged.  The pursuer founded his case rather upon the Writing being a binding and irrevocable deed of gift conferring upon him an immediate entitlement to enforce it by demanding a conveyance of the house to him by the deceased.


Argument for the pursuer

[17]       On behalf of the pursuer it was submitted that the principles of construction applicable to a testamentary writing should be applied in the present case.  The granter’s intention fell to be determined by the language used in the deed, but the deed had to be construed as a whole and in the factual context of the surrounding circumstances at the time of its execution.  The wording of the Writing was consistent with the making of an immediate and irrevocable gift.  The words “I have promised to give…” recorded past promises made which were now being rendered enforceable.  Such a construction was supported by the surrounding circumstances as follows:  

  • The deceased’s motivation to make such a gift was established in the evidence of the pursuer, Mrs MacDonald and Mr Reid.  The pursuer and the deceased had enjoyed a close and loving relationship which contrasted with the deceased’s strained relationship with her other daughters and their families.  Mrs MacDonald described the pursuer as the deceased’s “top priority”.
  • The deceased had taken the trouble to sign the document in front of an independent witness, demonstrating a seriousness of purpose and settled intention.
  • Mr Reid confirmed that the deceased had said repeatedly that the pursuer would get the house.
  • The signed and witnessed document was handed over to the pursuer (and his mother) for safe keeping.
  • The deceased’s decision to proceed by way of a deed of gift was explicable because of the poor relationship among her three daughters.  Mr Dawson had confirmed that the deceased was a person of strong character who did what she wanted to do.

The fact that the pursuer took no steps during the deceased’s lifetime to obtain title to and possession of the house was entirely understandable as the deceased required to continue to live in the house.  Had he chosen to do so, however, he could have insisted on having the gift completed by conveyance of the house to him.


Argument for the defender

[18]      On behalf of the defender it was accepted, under reference to observations by the Supreme Court in Marley v Rawlings [2015] AC 129, that the same approach ought to be adopted to interpretation of a unilateral document such as a will as to commercial documents: ie “to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context” (Lord Neuberger of Abbotsbury at para 20).  On that basis it was contended that the Writing did no more than it bore to do, which was to record a “wish to give” the house to the pursuer.  It did not operate as an immediate and enforceable obligation to convey the house but was no more than an expression of intention.  At best, the language was equivocal.  In order for an obligation to be created, the granter’s act of will had to have passed from “resolution” to “engagement”: reference was made to Cawdor v Cawdor 2007 SC 285 and to the passage from Stair, Institutions, I.10.2 cited by Lord President Hamilton at para 15 (see below).  On a proper construction of the Writing, the deceased had not passed beyond the stage of “resolution”.  This interpretation derived support from the factual context as follows:

  • Only two and a half weeks previously, the deceased had executed a will containing no equivalent legacy, in accordance with a home-made draft that had provided for the house to be sold.
  • No steps were taken by the deceased thereafter to perfect the gift by granting a conveyance of the house in favour of the pursuer.
  • The Writing remained within the effective control of the deceased.  Even as late as 29 August 2006, the pursuer spoke of uplifting the envelope containing it from Mr Dawson’s office “with [the deceased’s] permission”.
  • The house was the deceased’s only asset of substantial value.  It was inherently improbable that the deceased would give away almost the whole of her estate during her lifetime.


[19]      In Cawdor v Cawdor (above), Lord President Hamilton observed (para 15):

“It is undoubted that the law of Scotland will recognise as obligatory a promise duly made.  Delivery to or acceptance by the promisee is not necessary to the constitution of a promise (Stair, Institutions, I.10.4), though, in my view, the presence or absence of communication to the other party may be an adminicle of evidence in the question whether the statement amounts to a promise in law.  Stair (Institutions, I.10.2) distinguishes three acts of the will, namely, ‘desire, resolution and engagement’. Only the third is obligatory.  Having dealt with desire, Stair continues:

‘Neither is resolution (which is a determinate purpose to do that which is desired) efficacious, because, whatever is resolved or purposed, may be without fault altered, unless by accident the matter be necessary, or that the resolution be holden forth to assure others’.”


In similar vein, Lord Neaves referred in Macfarlane v Johnston & Ors (1864) 2M 1210 at 1214 to “…a serious declaration by which the person pledges his faith that he will do a certain thing”.  I adopt these formulations as the test to be applied in the present case in determining whether the Writing constituted a binding promise by the deceased to convey the house at 24 Cairncry Road to the pursuer.

[20]      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 pursuer]”.  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.

[21]      It is necessary, however, to consider whether the context in which the Writing was produced and subsequently executed by the deceased requires a different construction to be given to it.  I shall address in turn the circumstances founded upon by the pursuer as favourable to the creation of an obligation.

[22]      The first of these was the relationship said to have subsisted between the deceased and the pursuer.  On this aspect the evidence came primarily from the pursuer and from Mrs MacDonald.  I have required to assess their evidence with considerable caution.  In particular, Mrs MacDonald’s evidence was coloured by her determination that she or her son should obtain the deceased’s house.  Her view of the events that occurred during the critical period was entirely one-sided: from her perspective any intention expressed by the deceased in her favour or in favour of the pursuer was a genuine expression of her wishes whereas any intention expressed in favour of the defender or Mrs Smith was either the result of compulsion or was motivated by a desire to keep the peace.  I do not believe that the reality was so one-sided and I have no doubt that Mrs MacDonald, for her part, persistently attempted to influence the deceased with regard to disposal of the house.  Her explanation for the deceased’s failure to include a specific legacy to the pursuer in her will was that she was “not allowed to speak about him” by her sisters.  To a lesser extent, the pursuer was guilty of the same distorted approach.  I was not impressed by his dismissal of the defender’s actions towards the deceased as motivated by a desire for her money, or his suggestion that the defender only had the deceased to stay with her “when she needed her to sign things”.  I am prepared to accept that because the pursuer spent of more time in the deceased’s company he built up a closer relationship with her than her other grandchildren.  I am not, however, persuaded that that relationship was so much closer than the deceased’s relationship with any other member of her family that she would oblige herself, in effect, to disinherit everyone else in order to make a gift of the house to the pursuer.  The wording of the Writing is, in my view, more consistent with the production of a document to satisfy the desire of Mrs MacDonald and the pursuer to have evidence of such a desire: in other words it is an example of what Mrs MacDonald described as trying to keep everyone happy.

[23]      The second adminicle of evidence relied upon by the pursuer was the fact that the deceased went to the length of having the document signed and witnessed.  I accept that that demonstrates a seriousness of purpose; it does not, however, assist in determining whether that purpose had passed beyond the stage of decision-making to implementation. 

[24]      The pursuer placed emphasis on the evidence of Mr Reid, an independent witness, as to the deceased’s expressions of intention.  I accept Mr Reid as a credible witness but I found him unduly anxious to emphasise the deceased’s desire to give her house to the pursuer and am not satisfied that his evidence on this was entirely reliable.  In any event, Mr Reid’s knowledge can go no further than vouching the deceased’s expressed intention from time to time, and does not assist with the key issue of whether that intention was carried into effect by the making of an enforceable promise.  Moreover, his understanding that the pursuer was not to get the house until after the deceased’s death is clearly not supportive of the pursuer’s contention that the deceased intended to make an immediate gift.

[25]      The fact that the envelope containing the document was handed over to the pursuer and kept at Mrs MacDonald’s house is an adminicle of evidence capable of supporting the pursuer’s contention.  Any weight to be attached to it is, however, lessened by the fact that the deceased was regarded by the pursuer in 2006 as retaining an interest in the document, to the extent that he regarded its uplifting from Mr Dawson’s office as having taken place “with her permission”.  I do not therefore regard the fact that the document spent most of the remainder of the deceased’s lifetime in the hands of the pursuer and Mrs MacDonald as an indication that I should construe it as meaning something other than what it bears to say.

[26]      Turning to the contrary indications founded upon by the defender, it does seem to me to be highly significant that the deceased instructed the preparation of two wills, both executed in the presence of independent witnesses, in which no mention was made of leaving the house to the pursuer.  One was signed only a matter of weeks before the date when the Writing was signed, albeit many months after it had been typed on the pursuer’s computer, and the other was signed some years later.  Even on the pursuer’s version of events he was not intended to obtain ownership and possession of the house during the deceased’s lifetime.  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.

[27]      In reaching my conclusion as to the proper construction of the Writing, I have not found it necessary to place weight on any particular evidence given by the defender.   Had it been necessary to do so, I would have treated her evidence with similar caution.  It is fair to say that her oral evidence regarding family relationships was not as imbalanced as that of Mrs MacDonald.  I accept that the deceased had a good relationship with all of her grandchildren.  I did not, however, believe the defender’s evidence that when she attempted to exercise her power of attorney to evict the pursuer from the house she was unaware that his eviction would have been contrary to the deceased’s wishes.  It must also be noted that the defender’s counterclaim contains averments which at least suggest ill-treatment of the deceased by the pursuer.  No attempt was made to lead evidence in support of these averments.  Further averments suggesting fraudulent conduct by the pursuer and Mrs MacDonald were deleted at the close of the pursuer’s evidence.  It does not reflect creditably on the defender that these allegations were made apparently without a sufficient basis in fact.   In the end, however, there was very little in her evidence to cast any light one way or the other on interpretation of the Writing.  I note in passing that she gave unchallenged evidence that she had been unaware of its existence until after her mother’s death.

[28]      For these reasons, I hold that the pursuer has failed to prove that the deceased entered into a binding promise, enforceable against the defender as her executrix, to convey the house to him by way of gift.  I shall accordingly grant decree of absolvitor.


The second issue:  “Delivery”

[29]      My decision regarding the characterisation of the Writing renders any remaining issues academic.  I will however briefly address the defender’s subsidiary argument that even if the Writing was in terms capable of creating an obligation to perfect the gift of the house to the pursuer, it did not do so because delivery was required, and no delivery took place until the envelope containing the Writing was uplifted from Mr Dawson’s office on 29 August 2006, by which time the deceased had lost her capacity to make an effective gift.

[30]      Use of the word “delivery” is apt to cause confusion.  In the case law it is sometimes used to mean delivery of a document, such as a document of title to incorporeal moveable property.  In some cases, delivery of such a document to the donee is an essential pre-requisite for the transfer of ownership of the underlying property: see eg the discussion in Cameron’s Trs v Cameron 1907 SC 407.  In other cases, the word “delivery” is used to mean delivery of property: in other words it is used as a synonym for transfer of ownership.  This is likely to be the way in which the word is used with regard to corporeal moveable property, where donation will normally be effected by the handing over of the property itself.  The word is particularly apt to cause confusion when applied to heritable property: delivery of a disposition does not effect a delivery (i.e. transfer) of ownership, which occurs only when the disposition is registered in the Land Register.  Delivery of the disposition may nevertheless be sufficient to effect a completed gift as between donor and donee: see Marquess of Linlithgow v HM Revenue & Customs Commissioners 2010 SC 391.

[31]      In the present case no question arises of delivery, in the sense of transfer of ownership, having taken place.  The defender’s argument was concerned with whether, and if so when, delivery of the Writing took place.  In my opinion, however, this question has no relevance.  The Writing, if delivered to the pursuer, would obviously not have effected a transfer of title.  Nor would it have enabled the pursuer to take steps to complete title to the house without further action by the deceased as granter.  To put the matter another way, delivery of the Writing could not on any view have operated to complete the gift.  The issue that has required to be determined in this case is not, in my view, whether the deceased made a completed gift in favour of the pursuer; it is rather whether the deceased entered into an obligation, enforceable against the deceased or her executrix, to make such a gift.  As Lord President Hamilton observed under reference to Stair in the passage already quoted from Cawdor v Cawdor, delivery to or acceptance by the promisee is not necessary to the constitution of a binding promise.  The only significance of delivery of the Writing, in my view, lies in such evidential value as it may have as to whether the granter’s intention had reached the stage of “engagement”.  I have dealt with this already.  It is therefore, in my view, unnecessary and irrelevant to make any finding as to when the Writing was delivered to the pursuer.  A fortiori it is unnecessary to examine the deceased’s capacity to make an effective gift at whatever time the Writing was found to have been delivered.


The Counterclaim

[32]      The defender counterclaimed for reduction of the Writing on the ground that it was granted subject to the effect of undue influence by the pursuer.  As I have already noted, the conclusion for reduction was supported on record by averments of dishonesty of the pursuer and Mrs MacDonald and ill-treatment of the deceased by the pursuer.  No attempt was made to prove any of these averments.  At the close of proof, counsel for the defender submitted that the evidence of the circumstances in which the Writing was created and executed raised an inference that undue influence had been used to procure it: notably the fact that it was created at Mrs MacDonald’s house by the pursuer and the deceased together and signed only a few weeks after the deceased had executed a will in circumstances where no influence was exerted upon her, and in which it could be assumed that her true wishes were expressed.

[33]      I do not consider that it is necessary for me to address these contentions.  As the defender’s first plea-in-law makes clear, the counterclaim is made expressly on the hypothesis that the Writing was apt to oblige the deceased – and hence the defender – to dispone the house to the pursuer.  I have held that it is not.  There would accordingly be no practical utility in reducing the Writing.  It seems to me that the appropriate course of action is simply to dismiss the counterclaim.



[34]      In order to give effect to the above decision I shall pronounce the following interlocutor.  In the principal action I shall repel the pursuer’s pleas-in-law, sustain the defender’s third plea-in-law and grant decree of absolvitor.  In the counterclaim I shall sustain the pursuer’s third plea-in-law (to relevancy) and dismiss the counterclaim.  Questions of expenses are reserved.