This is an Outer House case in which Mr Hann (the executor of the late James Wheeldon) sought reduction of a will (and confirmation on the will) which purported to leave property (Powfoot Hall) to the son of the late Doris Spence.

Mr Wheeldon had a business relationship with Mrs Spence, and in fulfilment of certain informal agreements between them, he conveyed Powfoot Hall (were he had lived for 43 years till his death in 2007) to her in 1987. In 1994 Mr Wheeldon and Mrs Spence made a further informal written agreement containing the following clause:

“… As affairs between … [Mrs Spence] … and … [Mr Wheeldon] … are now agreed by both parties concerned and fully settled, and the title deeds to the Powfoot Hall are hereby returned to … [Mr Wheeldon] …. who now assumes full legal title to Powfoot Hall on 20/12/1993 and becomes owner of said property…”.

However Mrs Spence died in 2003 without having conveyed Powfoot Hall back to Mr Wheeldon, and by her will of 2002, she left the property to her son.

After considering prior authority[1], Lord McEwan found that Mrs Spence had bound herself to leave the property to Mr Wheeldon during her lifetime notwithstanding the fact that her son may have taken it in good faith. Consideration was also given to the possible application of the offside goals rule[2]. However, Lord McEwan found that the rule did not apply in this case:

“Much was made of the “offside goal rule” in the very good natured debate before me where metaphors were freely mixed and, I suspect, both counsel knew more of soccer than I.

If I can continue in the same vein, I think the “offside goal rule” was intended to strike at bad faith; the player knowing he is out of position yet trying to secure a benefit from the offside place on the field of play. This is what Rodger is about. It does not deal with the player who takes an advantage gratuitously and who may not be offside. The problem is that the player [Mrs Spence] who passes the ball to him [Mr Wheeldon] has broken the rules and the pass is invalid.

Whether Lord Kincairney in 1893 was an aficionado of the beautiful game I know not. Even by then the game had rules. It was not called offside in those days but since the rules of football were formulated by the gentleman players of the English public schools in 1863 there was a prohibition against playing the ball if you were “out of play” (Rule 6) (See Melvyn Bragg: “Twelve books that changed the world” p102).

In my opinion this case does not depend on the doctrine in Rodger but on the principles set out in Paterson, dealing as it does with succession and not property and titles.”

The full judgement is available from Scottish Courts here.