Executor wins appeal over brother-in-law’s claim to late mother’s house

Allowing the appeal by the woman’s son and executor, judges in the Inner House of the Court of Session observed that the deceased had prepared and executed a will which “directly contradicted” the alleged oral bargain and held that the pursuer had failed to plead a relevant and sufficiently specific case to entitle him to a proof.

Lady Paton, Lord Bracadale and Lord Malcolm heard that the pursuer Hamid Khosrowpour offered to prove that in 1989 his late mother-in-law had agreed to leave her ex-council house to him in return for payment of £8,000, which allowed her to exercise her right to buy the property from her local authority; £800 being referable to legal costs, etc.

In resisting the claim her son and executor Andrew Mackay, the defender, referred to a standard security granted by the deceased in 1991 over the subjects in security of all sums due to the pursuer, which did not mention any obligation to bequeath the house to him.

The defender averred that any agreement between the pursuer and the deceased was outwith his knowledge, but in any event it was not reduced to writing.

The pursuer admitted that there was no written record of the agreement, but claimed that because of the promise that the house would be left to him he did not insist upon any interest payments.

He averred that the deceased executed a will in terms which complied with the agreement, but that unknown to him she signed a subsequent will in different terms which superseded the first will, although the defender averred that the first will was destroyed and that he had no knowledge of its terms.

The second will directed that £7,200 be paid to her daughter, the pursuer’s wife, as representing her contribution to the purchase of the house, with the residue of the estate, including the sale proceeds of the house, to her three children as survive her.

This will was said to be in breach of the agreement, but the pursuer only became aware of it after the death of the deceased in 2012.

Given that the agreement was said to have occurred in 1989, before the reforms introduced by the Requirements of Writing (Scotland) Act 1995, the old law applied.

At a debate the Lord Ordinary addressed submissions on behalf of the defender that, being one relating to heritable property, the alleged agreement required to be constituted in writing, and that the pursuer’s averments in support of a plea of “rei interventus” were “insufficient” to justify a proof.

The pursuer accepted that pre-1995 agreements relating to land required to be constituted in writing, but it was submitted that this was not such a contract - it was an “innominate or unusual contract” which could be proved by parole evidence.

Failing that, it was claimed that the defender was personally barred from relying upon the invalidity, and that by operation of the doctrine of rei interventus.

The Lord Ordinary held that the alleged contract related to heritable property and therefore required to be constituted in writing.

The pursuer’s averments in support of rei interventus were (i) the payment of the agreed sum and (ii) the execution by the deceased of the first will.

In response the defender pointed to the terms of the standard security which contradict the alleged bargain.

The Lord Ordinary recognised that the terms of the standard security present a problem for the pursuer, but held that these were matters for decision after evidence and therefore allowed a proof before answer.

In this reclaiming motion (appeal) the defender challenged that decision, arguing that since the innominate or unusual contract issue was in his favour, the action should have been dismissed.

Delivering the opinion of the court, Lord Malcolm said: “For present purposes these averments on behalf of the pursuer must be taken pro veritate. However, in our view they do not entitle the pursuer to the benefit of any assumption or presumption that, when executing the first will, the deceased is to be taken as having been aware that she knew of her right to withdraw from the arrangement. Nor are we persuaded that the court could hold that she must bear responsibility for any ignorance on her part in that regard.

“Any other approach would be difficult to reconcile with the clear and unequivocal terms of Bell’s classic statement referred to above. There was a suggestion at the hearing that the deceased could have obtained legal advice.

“As a proposition no doubt that is true, and in a different context might well be significant. However, this was a family matter, and when a formal legal document was prepared and executed, it directly contradicted the alleged oral bargain.

“Throughout, the defender’s main submission has been that it is sufficient for him that the pursuer’s case cannot be reconciled with the terms of the standard security. That bald proposition is perhaps overstated.

“However, when one adds a requirement on the pursuer to prove full knowledge on the part of his mother-in-law as to her right to resile, failing which to demonstrate that the onus has shifted to her, we are persuaded that it is an important factor in our ultimate conclusion, namely that the pursuer has not averred a relevant and sufficiently specific case such as would entitle him to a proof before answer.

“It follows that this reclaiming motion should be allowed and the action dismissed. In fairness to the Lord Ordinary, it is right to acknowledge that the issue in the Inner House was very different from that which he was asked to decide.”