Can you make a claim for something you were promised if it is not in their will?


Disputes often arise after a person’s death if their will does not reflect what was expected by the deceased’s close family and friends. Recently the courts have seen a series of cases whereby a claim has been brought because the will of the deceased did not acknowledge a promise made by them during their lifetime. Often, this is a promise to transfer land or property. In certain circumstances, it may be possible to enforce a promise that has not been fulfilled in a will.

The relevant legal principle is known as ‘proprietary estoppel’. It is a doctrine which allows an individual to make a claim for an asset (usually land or property) that was promised to them, even if the legal owner of the asset subsequently changed their mind and left it to someone else. In order to succeed with such a claim, the following requirements must be met:

  1. The person bringing the claim (the claimant) must show that they were promised or assured by the owner that the asset would be his/hers. Although this is easier to evidence if the promise was made in writing, cases have shown that verbal promises are sufficient.
  2. The claimant must show that they relied on this promise or assurance.
  3. The claimant must show that they have been negatively impacted financially as a result of this reliance.

The recent case of Guest v Guest involved proprietary estoppel and its facts are similar to a case we had at Gardner Leader that went to trial. Guest involved a farm which had been managed by the same family for three generations. It was owned by David Guest and the claim was brought by his eldest son, Andrew. Andrew had worked on his father’s farm for 33 years during which time he received a low wage and resided in a cottage on the farm.

Andrew claimed that he had been led to expect that he would inherit a substantial interest in the farm. However unbeknown to Andrew, his father decided to change his will after a falling out and did not leave anything to Andrew. The court found that Andrew had relied on his father’s promises to his detriment as he had worked for low pay and had not pursued opportunities elsewhere. As a remedy, Andrew was awarded a lump sum payment which equated to approximately 50% of the market value of the farm.

The case of Guest v Guest highlights the importance of addressing the issue of inheritance at the earliest opportunity. This can be done through proper estate planning. However if circumstances arise in which it would be unconscionable for a promise to remain unfulfilled, it is possible to seek to enforce such a promise.

A probate dispute in any form can create immense difficulties among families, so getting expert advice at an early stage is essential in order to understand your rights and options.

Helena Taylor

Dispute Resolution

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