A will may be challenged if the will maker made promises to someone else that they would make a gift to them in a will in exchange for the promise of doing something, and the promisee acts on that promise to his or her detriment.
This is known as a proprietary estoppel claim. It is where an applicant seeks to compel the gift based upon promises made by the will maker during his or her lifetime. Estoppel generally refers to the ability for someone to enforce a promise.
Common examples of proprietary estoppel are:
- a parent promises an adult child that they will give them the family farm in exchange for work;
- an elderly person promises their home to their carer if they provide voluntary care; or
- a parent promises to transfer a home to an adult child if they assist in renovations.
Who may apply
Anyone who has been promised a transfer of land by a will maker in exchange for work, services or some other arrangement may apply.
Time limits
There are no specific time limits to dispute a will by proprietary estoppel. However, it may be more difficult, if not impossible, to proceed if the estate has been partially or fully administered.
It should also be noted that proprietary estoppel is something that may be pursued in the will maker’s lifetime, such as when the will maker indicates that they are leaving the property to someone else in their will, or selling it.
The process
An applicant may apply to the Supreme Court in its Equity jurisdiction for orders for the transfer of the gift from the estate. Alternatively, and if it is impractical to order the specific gift, an applicant may seek payment of compensation.
The court will examine all the evidence including the promises made by the deceased, and whether the gift is proportionate to the detriment suffered by the applicant/promise in keeping his or her side of the bargain.
An applicant must prove:
- a specific promise was made about a gift and the promise was meant to be relied upon;
- the promise was both believed and relied on by the applicant; and
- in relying on the promise, the applicant suffered some form of detriment.
Using the above examples, detriment may consist of:
- the adult child refusing offers of outside work and toiling on and developing the farm over many years on a low wage and not entering the property market;
- the carer refusing outside work and looking after the elderly will maker for no or little reward; and
- the adult child borrowing money and performing substantial renovations to their parent’s home.
The court will look to the harm that may flow if the will maker was allowed to ‘break’ their promise.
Costs
If an applicant is successful, they would normally be awarded their costs. If they are unsuccessful, they may be ordered to pay the costs of the estate in defending the claim.
Next steps
Delay can be fatal to a claim. If you have been promised a transfer of land in exchange for something, and you have performed your side of the bargain, you should not delay in contacting DBL Solicitors to discuss your matter.
Ben Trost
Senior Litigation Solicitor
