Archive for April, 2010

Disputed Wills – Judgment regarding the dispute of George Key deceased

Tuesday, April 27th, 2010

Disputed Wills are a common occurrence these days, with an estimate of 1 in 4 estate cases ending in a probate dispute about an inheritance.

The latest reported case of the estate of George Key, decided March 2010 by Mr Justice Briggs found that Mr Key had suffered mild cognitive impairment, the main symptom being that he suffered short term memory loss before the making of his Will in 2006.  This illness was brought on by the devastation of the death of his wife of 65 years.  The Will was made within a week of that death and led to a bitter dispute between the 4 children of the family.

The Judge rejected the widely reported press statements that the deceased had been plied with sleeping tablets and alcohol by his daughters.  The Judge did find that one of the son’s participation in a deed of variation and acceptance of an enduring power of attorney demonstrated that his son did not believe his father to have mental capacity.  The decision was however largely based on the expert medical evidence produced at court and the lack persuasive evidence produced by the solicitor who prepared the Will.

In order to bring an end to the dispute, the Judge found that the late Mr Key did not have testamentary capacity to make the 2006 Will and if he did have, he did not know and approve the contents of the Will.  The 2006 Will was therefore declared invalid and the original 2001 Will which left the farm to Mr Key’s two sons was admitted to probate.

This is the first disputed Will case which deals with the effect of bereavement on testamentary capacity.  It is now recognised that such circumstances could deprive a person of power to make rational decisions, in this case the daughters were unable to show that their father had capacity and the burden of proof was on the them to demonstrate this.  This is a first instance decision however and it may be appealed.

Proprietary Estoppel – Acting to your detriment

Tuesday, April 20th, 2010

“It is sufficient if the party to whom the assurance is given, acts on the faith of it in such circumstances that it would be unjust and inequitable for the party making the assurance to go back on it”. (Lord Denning in Greasley v Cooke [1980] 1 WLR 1306)

Proprietary estoppel is an equitable doctrine which addresses the circumstances in which a promise has been made to someone who has then acted in reliance on that promise to their detriment. It follows from that, that it is unconscionable in the circumstances for the promise not to be fulfilled and/or honoured.

If you find yourself in a position where a promise was made to you that you relied on that promise in a detrimental way, following which on the death of the deceased,  he or she did not carry out the promise, you may have a claim under the doctrine of proprietary estoppel for an interest in the property and/or assets which were promised to you.

The main question is what did you do to your detriment in reliance on the promise? This is an open ended question and there is no specific definition as to what constitutes detriment in these circumstances. Examples, which have been upheld by the court however are:

  • Giving up work and moving from one town or city to another;
  • Foregoing other business opportunities to work in the family business for a reduced salary;
  • Providing general nursing care to the deceased, tending to their garden and running errands; and
  • Giving up a career.

Each case of proprietary estoppel differs.  However it is a powerful doctrine, which must not be overlooked in contentious probate cases where a deceased has left a will which has not provided for you or if there is no will, which means you will not inherit under the intestacy rules.