Michael Alexander Macdonald Against Helen June Cowie Executrix Nominate Of The Late Mrs Hazel Annie Margaret Moir
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2015] CSOH 101 |
| Court | Court of Session |
| Published date | 29 July 2015 |
| Year | 2015 |
| Date | 29 July 2015 |
| Docket Number | A370/13 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 101
A370/13
OPINION OF LORD TYRE
In the cause
MICHAEL ALEXANDER MACDONALD
Pursuer;
against
HELEN JUNE COWIE, Executrix Nominate of the late MRS HAZEL ANNIE MARGARET MOIR
Defender:
Pursuer: Beynon; Drummond Miller LLP
Defender: Francis; Anderson Strathern LLP
29 July 2015
Introduction
[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.
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