Proprietary Estoppel

Anyone has the right to change their will as they see fit. However, the law considers it unconscionable for them to to do so after someone else has acted in reliance of a previously given assurance by the testator, the person making the will, about inheriting land or property that would obviously leave that person disadvantaged when that promise is not kept in a will.

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The law can't stop people changing their minds, but what happens when promises concerning the inheritance of land or property given by someone during their lifetime are not honoured in their will, and you have relied on those promises?

Anyone has the right to change their will as they see fit. However, the law considers it 'unconscionable' for them to to do so after someone else has acted in reliance of a previously given assurance by the testator (the person making the will) about inheriting land or property that would obviously leave that person disadvantaged when that promise is not kept in a will.

For example, a farmer might require assistance on his farm, but may not be in a financial position to pay a fixed monthly wage to a new employee and instead he may rely on a relative or friend to lend a hand.

To encourage the relative to go along with that arrangement he may promise, or merely allow the relative or friend to believe, that land will be left to them in exchange for their labour once he passes away. This informal arrangement might carry on for months, years, or even decades.

Having committed a great deal of unpaid work to the farm, the relative might then find themselves in a very vulnerable position if the farmer's will does not mention the arrangement and the land is left to someone else. The relative/friend may have passed up on opportunities to pursue other careers because they believed their future was secure and they invested their time or money into the farm.

If, contrary to the assurance given, the farmer's will fails to leave the land to the relative, the relative may be able to bring a claim in Proprietary Estoppel.

I want to know

How do I contest a Will using proprietary estoppel?

If I can use proprietary estoppel to contest a Will

The will itself may be perfectly valid, but it would be unconscionable for you to not inherit where you have shown evidence of the promise, reliance and detriment.

Remember though that even if the court does find in your favour, this does not mean that you will automatically inherit everything that was promised to you.

The court has a discretion to award what it feels is just and equitable taking into consideration the expectations that you have as a result of the promises made to you. If the court feels that you can be adequately compensated by a share of land for example, then it will make such an order.

The court may also want to promote a 'clean break' between the parties to the dispute when making a decision to reduce the possibility of future problems.

Mediation plays an important role in disputes of this nature and wherever possible we will encourage the parties to try and resolve the dispute without the need to go to court.

If I need a written assurance to succeed in my proprietary estoppel

In order for a Proprietary Estoppel claim to succeed, you would have to show that the assurance (which does not necessarily need to be in writing) was indeed given and that it was reasonable for you to rely on that assurance.

In effect, you are claiming that going back on a promise made (oral or written) was unfair and not what would be considered usual or proper behaviour (what's termed 'unconscionability').

Whilst the assurance need not be in writing, you will need to satisfy the court that such an assurance was indeed made and witness evidence will be important.

You must also show that your reliance on that assurance meant that you subsequently acted to your own detriment (i.e. you failed to explore other opportunities or careers you otherwise might have done because of the promised inheritance).

The court may decide that it was unconscionable for the promise to be withdrawn and decide to enforce it or at the very least it could encourage the representatives of the estate to reach an agreement at the negotiating table.

More about proprietary estoppel

In order to succeed in a claim for proprietary estoppel, it will be necessary to show that there was a promise or assurance that you relied on to your detriment. Evidence of the promise or assurance, probably in the form of witness statements will be required together with evidence of the detriment.

The detriment can take many forms, such as spending money on improving land or property, giving up a job or moving home, or not pursuing education or career opportunities.

A further example of a proprietary estoppel claim is someone giving up a job or home to move in with a relative to care for them on a full time basis, free of charge on the understanding that they will inherit the property. If the will then leaves the property to someone else, it may be possible to bring a claim in proprietary estoppel.

A proprietary estoppel claim must be made as soon as possible, as a delay in bringing a claim may prevent you form bringing it altogether. You should therefore seek legal advice as soon as possible if you think you have such a claim.

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Proprietary Estoppel

Access Legal can assist if you are thinking of making a proprietary estoppel claim to contest a will that doesn't leave property or land you were promised or have any concerns about a will.

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