Clarity Requirement for Binding Testamentary Promises: Davies v Cassie [2025] CSOH 36

Introduction

In the Outer House of the Scottish Court of Session, Lord Colbeck delivered the opinion in Louise Wylee Davies v Lorna Mary Cassie ([2025] CSOH 36). The pursuer, Ms Davies, claimed that her late partner, William Andrew Cassie, had repeatedly promised to bequeath the bulk of his estate—worth over £2.6 million—to her. No will was ever executed. The defender, Ms Cassie (the deceased’s sister and executrix dative), denied that any clear and binding promise was ever made. The sole legal issue before the court was whether the pursuer’s averments disclosed a “gratuitous unilateral obligation” – in Scots law, a promise to make a testamentary disposition – sufficiently clear and specific to be admitted to probation, despite the absence of a compliant written document under the Requirements of Writing (Scotland) Act 1995.

Summary of the Judgment

Lord Colbeck held that none of the pursuer’s averments contained the kind of “clear and unambiguous words” necessary to establish a binding promise in Scots law. Drawing upon established authorities, the court reaffirmed that a promissory obligation, particularly one with stringent consequences like the forced conveyance of land or large sums, must be based on unequivocal language. Because the pursuer failed to plead any such language, her second and third conclusions—seeking declarators and conveyance of the estate—were dismissed. A limited proof before answer was allowed on her first conclusion (delivery of certain moveable items). The action was otherwise repelled in the defender’s favor.

Analysis

Precedents Cited

Macfarlane v Johnston (1864) 2 M 1210: Lord Neaves defined a promise as “the delivered expression of the serious engagement by the person promising that he will do the thing promised,” emphasizing that engagement (as opposed to mere desire or resolution) creates legal obligation.
Countess of Cawdor v Earl of Cawdor 2007 SC 258: Reinforced that among the promisor’s mental acts—desire, resolution, engagement—only engagement gives rise to an enforceable promise.
Regus (Maxim) Ltd v Bank of Scotland plc 2013 SC 331: The Lord President (Gill) held that promises giving rise to unilateral obligations must rest on “clear and unambiguous” words of the promisor; judicial task is to assess objectively whether those words disclose an intention to incur a legally binding engagement.
Requirements of Writing (Scotland) Act 1995: Section 2 requires a document for gratuitous unilateral obligations, with section 1(3) offering limited exceptions where the beneficiary has wholly or partly executed the obligation or the promisor’s act itself imports binding intent.

Legal Reasoning

The court’s reasoning unfolded in two phases:

Existence of a Gratuitous Unilateral Obligation: Before invoking any writing exception under section 1(3), the pursuer must first plead a promise. Drawing on Macfarlane and Regus, Lord Colbeck stressed the necessity of promissory “engagement” evidenced by the promisor’s own words. General assurances or predictions—such as “most of my estate will go to you”—are insufficient.
Quality of the Averments: The pursuer’s article 6 contained broad statements (“All of the deceased’s heritable and moveable estate was promised to the pursuer”) and nine sub-paragraphs describing conversations. In every instance, the language was vague (“some of,” “most of,” “everything will be left right for you”) or predictive rather than affirmatory. No single averment presented unequivocal, present-tense commitments amounting to a binding promissory obligation.

Accordingly, the court concluded that the prerequisites for even considering a section 1(3) exception were never met.

Impact

This decision reinforces the strict approach Scottish courts take to testamentary promises. Key consequences include:

Claimants asserting informal promises must plead the exact words of promise, not rely on generalized assurances or conduct.
Section 1(3) exceptions under the Requirements of Writing Act will not rescue cases lacking any objectively binding engagement.
Future litigants will need to integrate contemporaneous records (letters, emails, transcripts) containing clear promissory language if they intend to enforce oral commitments.

Complex Concepts Simplified

Gratuitous Unilateral Obligation: A one-sided promise (no consideration exchanged) whereby one person pledges a benefit, typically in a will. In Scots law, enforceable only if made in clear terms and usually in writing.
Promise vs. Prediction: A promise is a binding “engagement” to act; a prediction or mere statement of intention (“I’ll probably leave it to you”) lacks the necessary clarity and commitment.
Requirements of Writing (Scotland) Act 1995: Requires written form for gratuitous obligations. Section 1(3) can dispense with the document if the beneficiary relies on performance or unequivocal conduct—but only after a promise has been properly pleaded.

Conclusion

In Davies v Cassie, the Court of Session reaffirmed that to enforce an oral testamentary promise, a pursuer must allege—and ultimately prove—clear, unambiguous words of commitment. Absent such unequivocal language, the Requirements of Writing Act’s safeguards cannot be bypassed. The judgment underscores the importance of formal documentation for testamentary intentions and sets a high bar for litigants seeking to convert informal assurances into enforceable obligations.