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Be careful what you promise
You’ve promised to leave property to someone in your Will but never actually update it. What the court can do in certain circumstances.
So you own a house and your partner moves in. They spend money making improvements and on repairs. You live happily together for some years and you tell them not to worry because half the house is theirs. Unfortunately, you die before you have updated your Will to make provision for them. What next?
There is a concept called ‘proprietary estoppel’ which is a legal remedy available to a person when they have been promised an interest in property and have, in reliance upon it, incurred expenses or made sacrifices that they would not have otherwise have made. The court will decide whether, in the circumstances, it would be unfair for someone to renege on their promise or assurance knowingly (or even unknowingly), when they have allowed or encouraged someone else to act upon this promise or assurance to their detriment.
The key factors in establishing the principle of proprietary estoppel are:
1. There has been a promise or assurance
2. The person claiming must have done something in reliance on that promise or assurance
3. The person claiming must have incurred expenditure or otherwise prejudiced themselves or acted to their detriment
4. The person claiming must have been encouraged in their belief by the person making the promise or assurance or allowed to continue in their belief without being corrected
A leading case regarding proprietary estoppel is Gillett v Holt (2000). Here the defendant promised to leave his estate to the claimant in his Will. He made assurances to the claimant several times over the many years which the claimant worked for him for low pay. When the claimant found out that the defendant had changed his will disinheriting him, he brought a claim in the court. This was unusual because the will had not come into effect yet. However, the court still found in favour of the claimant and ordered that part of the defendant’s estate be transferred to the claimant immediately.
As you can see, it is important to be careful about what assurances you make to people because no matter how good intentioned at the time, if circumstances change and you do not intend to stick to the promise or assurance you have made, it may be too late and you may be held to it.
If you have made a promise or assurance to someone, that you intend to leave property to them in your Will, it is advisable to make that Will or update your Will accordingly, otherwise the person you intended to leave property to may have to make a claim upon your death and it will cause them unnecessary stress and cost at a very difficult time.
At Longmores we have a specialised Private Client team and can help you with updating or making a new Will for you. For more information please contact Charles Fraser.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.