If a person makes a verbal promise or assurance that their land or property will be passed on to another when they die, what happens if they go back on that in their Will?
While a person has the right to leave their estate in the way they want, if they have made a promise and the person has acted on that promise, made significant choices based on the promise and suffered detriment as a result, there may be a case for Proprietary Estoppel.
Such problems are common in farming families. Offspring in a farming family might work on the family, earning low wages and helping to build the family business under assurances that they will get an interest in the land. It’s common for the family later to fall into a feud, and the parent to leave their child little or nothing in the Will.
You can bring a claim for Proprietary Estoppel if a Will does not honour promises made by the deceased concerning property and if your reliance on that promise has caused detriment.
For a claim of Proprietary Estoppel a court will look at the following:
There is no strict time limit for proprietary estoppel claims, but delays can be used as part of the defence to a claim.
If you are facing a claim for Proprietary Estoppel, it can be daunting. Proprietary Estoppel claims are highly complex and if successful, it could mean that your inheritance is distributed differently.
Speak to our specialist Contentious Probate team, who can help.
If a claim is proven, the court will consider making an award. This likely will not be the whole of the ‘promise’. In reality, a court makes an award that enforces the point that it would be unconscionable to allow the deceased to go back on the promise, and to compensate for the detriment caused by the claimant relying on the promise.
Proprietary estoppel claims are highly complex and acrimonious. The potential for large-scale costs is high.
In many litigation cases, the losing party will be responsible for the successful party’s costs. Therefore, alternative dispute resolution should be considered before litigation. Our teams specialising in mediation can help to provide advice and guidance on the strategy in dealing with these claims.
Depending on the facts, a Proprietary Estoppel claim might also be brought alongside a claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975.
If someone is left without ‘reasonable financial provision’, they may be able to make an Inheritance Act claim. Where a Proprietary Estoppel claim is based on the idea of a promise, Inheritance Act claims centre around a claimant not being left ‘reasonable financial provision’.
Each has different legal requirements, even if it’s the same facts that support them.
They can also be brought separately.
At BTMK we always advise that people who own land or property that’s a vital part of running a business should get specialist advice on their estate planning as soon as is practical.
If things don’t work out as planned, the team at BTMK have experienced and independent mediators who can try to get a resolution before you consider litigation. But we are also experienced in court litigation, should the situation require it.
Making a valid will is also crucial. You can also lay out your reasons for decisions regarding your succession in a Letter of Wishes, so your line of thought is clear and transparent from the start, leaving less room for argument in the future and limiting the risk of family members having to be tangled in expensive and long running litigation.
