Contesting a deceased’s estate for damages pursuant to a contractual promise

Contesting a deceased’s estate for damages pursuant to a contractual promise

The law in England and Wales provides for the freedom of testamentary disposition. This means that a testator is free to leave his entire estate to whoever he wishes, whereas there are many jurisdictions which do not allow such freedom and follow a system of forced heirship, meaning you cannot disinherit your bloodline no matter how much you would wish to.  

 Although our jurisdiction does allow for such freedom, there are various remedies available to a disappointed claimant who may have expected to benefit from a deceased’s estate. These include contesting the validity of a will (see article 31 March 2010 ) or bringing a claim on the grounds of proprietary estoppel (see article dated 31 March 2010 ).

 An alternative option available to the disappointed claimant could be to bring a claim for damages against the estate for breach of contract. The claimant would have to show that the testator was contractually bound to provide for him or her in his will, failing which the claimant is entitled to damages to reflect the testator’s breach.

The claimant would need to show that all of the elements required to create a contract between it and the testator exist which are:

  • An offer to contract on specific terms, made by either the claimant or the testator and that this offer was accepted. Therefore for example, that the claimant agreed to lend £100,000 to the testator over 10 years free of interest during his lifetime on the basis that he would receive the requisite amount of interest (e.g. 10% APR) upon the testator’s death. The testator therefore agreeing to these terms and agreeing to provide for the interest payment in his will.
  • Consideration provided by both parties on the basis of the agreement, in this example being the £100,000 interest free lifetime loan being provided by the claimant and the execution of a will providing for interest to the claimant being provided by the testator.
  • An intention on the part of both the claimant and the testator to create legal relations, which in effect binds both parties to their promise.

 As with all claims of this nature, a claim would need to be supported by documentary evidence. If the testator made a will at the time of the agreement to reflect the agreement, yet subsequently changed that will, the first will would be evidence of the testator’s intention at the time of the agreement. This would have to be supported by further documentary evidence between the parties regarding the agreement and any witness evidence to support that the agreement in fact took place.

Such a claim would not change the testator’s final will, which would still be admitted to proof, rather the claimant would have a claim for damages against the estate which if proven and granted would be paid as a debt of the estate before the estate is administered and its assets distributed. The net consequence therefore affecting the ultimate distribution to the residuary beneficiaries of the testator’s final will.