Can I contest a will if I was Promised something ?
This weeks case study on contesting a will, focuses on broken promise claims (legally called Proprietary Estoppel ) the facts are taken from a real case in which we acted for the successful claimant.
The background facts are relatively straightforward. Mr A was married to Mrs B. They bought a house together whilst married, with Mr A paying the mortgage. The couple divorced, and as part of the divorce settlement Mr A’s share in the family home passed to his ex-wife. As the property still had a mortgage to be paid, our client agreed to continue paying the mortgage, this was on a very clear promise that in the event of her death, 50% in the property would pass back to him.
Evidence was produced showing that prior to her death Mrs B had in fact made a will confirming that she would leave 50% of the property to her ex-husband. Unfortunately, Mrs B died before signing the will, dying Intestate, with her entire estate passing to her Brother, including the property.
How we proved our clients claim
When instructed by Mr we immediately recognized that the case had all the hallmarks of a proprietary estoppel claim. To succeed with such a claim, the law provides that there are three factors would need to be proven:-
- First, the promisor ( in this case Mrs B ), must give an assurance or promise. The assurance or promise must be “clear enough”, and must relate to an interest in land.
- Secondly, there must be a reasonable reliance on the promise or assurance and
- Thirdly, the person relaying upon the promise must suffer a detriment, if the promise is not maintained.
The evidence in the case
Evidence was obtained from family and friends showing that the deceased had said on numerous occasions that half of the family home would pass to her ex-husband, there was also documentary evidence in the unsigned will together with the attendance note prepared at the time the will was drafted. On this basis there was sufficient evidence of a clear promise, and secondly our client who had been paying the mortgage for over 10 years had clearly suffered a detriment and loss.
Negotiations
Despite the evidence pointing clearly in our clients favour, the brother of the deceased who had inherited the entirety of the property ( by default ) tried unsuccessfully to defend the case as a result of which we had to threaten taking the case to Court which would have involved issuing part 8 proceedings seeking a declaration from the court that 50% of the property ( valued at £200,000 ) should have passed to our client. Fortunately, after a successful mediation we were successful in recovering the share in the property that should have passed to our client.
Broken promise claims
The lessons to learn in this case are :-
- If you are lending money to someone in respect of a property always put what is agreed in writing
- Always take independent legal advice – what should have happened in the above case is that a declaration of trust setting out what was agreed should have been drafted – this would have avoided any future conflict
- Make a will. As the facts of this case show, unfortunately the will was signed and this led to unnecessary costs arising – another family member may not know the full facts.
Other more recent examples of claims
A lot of contested will cases arise when one party has relied upon a promise or an assurance, as the more recent cases illustrate :-
Wills v Sowray [2020] EWHC 939 (Ch) – this case concerned a farmer who had died, the Claimants where friends of the deceased the evidence showing that they had undertaken numerous tasks such as maintaining land, fencing etc for free, on the reliance that one day certain parts of land would be theirs, in fact one of the claimants had even given his jeep to the deceased in reliance on the basis of a promise. The Claim was successful.
Thompson v Thompson [2018] EWHC 1338, involved another farming case, in this case the Claimant had worked on the farm since the age of 15 for an incredibly how wage on the basis that he had been promised the farm in various representations made.
Proving these types of case can always be very challenging and therefore the need to act quickly after someone has died is always crucial. If you need help brining a claim after someone has died, please contact Tim Murden on 01482 429985 or via email at tim.murden@tmsolicitors.co.uk
