Great expectations: Bradbury v Taylor

It is not unusual for elderly relatives to promise their younger relatives benefits on their death. Sometimes this is done to obtain love, affection, ?or even services, in the sense of care, ?or physical work around the house.

When the will is read, there may be disappointment (or in the words of Nick Lowe, in the appropriately titled ‘Indian Queens’: “He said he’d leave me everything/ But he died before he could sign the will”).

Broken promises

If there is a legal remedy for the disappointed beneficiary, it may lie in the doctrine of proprietary estoppel. That is a principle of equity that prevents people from going back on assurances that they make in respect of their property where the assurance has been relied upon, and it would be unfair for them to withdraw. It is of general application, and not simply limited to promises made about inheritances – but that is where the present interest appears to be.

In Thorner v Majors [2009] 1 WLR 776 Lord Walker said that it was unlikely that treating the doctrine liberally would open the floodgates of claims. That view may have been a little optimistic. Bradbury v Taylor is the third such case on the topic to reach the Court of Appeal in recent months and at least the second to reach the national press (the other two are Shirt v Shirt and Suggitt v Suggitt. ?Both appeals were dismissed on the facts. See Make hay while the sun shines, PCA, June 2012).

While the public interest may reflect the ‘human interest’ involved in such claims, the tenor of recent newspaper reporting has also tended to show disapproval where the estate of the elderly is diverted to relatives on the strength of such promises. Is it now ?just too easy to make and succeed in such a claim?

Bill Taylor was an artist, art historian, teacher and journalist. By 2000 he was 80 years of age, recently widowed, and living in his large grade II-listed Cornish long-house, Lower Manaton, Callington, filled with antiques and valuables. He asked his nephew, Roger Taylor, and Roger’s partner, Denise, to relocate from Sheffield and move in with him, with their two young children. This they did, and the house was divided in two.

Roger set about carrying out works to the house (as to the cost and value of which there was much dispute), while from time to time assisted Bill with his home life. However, by 2008 there was a falling out.

Roger and Denise said that Bill had promised them Lower Manaton on his death, and that was why they moved down, did the work and provided the services. Bill denied making any such promise, and brought a claim to establish that Roger and Denise had no such rights. Roger and Denise counterclaimed, asking the court to declare that Bill was obliged to leave them the house.

Unfortunately, Bill died on the day he was due to give evidence. His will left his estate in the main to charity, and although he left Roger a financial bequest, that lapsed. The house was worth about £800,000, and the estate as a whole about £1.1m.

The case continued. The judge held that Denise and Roger had been promised the house; that they had relied on that promise by moving down and relocating; by carrying out the work; and by caring for Bill. That was a sort of bargain and, applying the guidance of Robert Walker LJ in Jennings v Rice [2001] 1 FCR 501 at [45] to [51], it would be unfair if Bill were not obliged to carry out his side of it. Subject to Roger and Denise having to pay the additional inheritance tax, they would have the house.

Inviting trouble

The case illustrates the risk involved to an elderly person who invites a relative to live with them in their old age. If a claim is made after their death, the relative may assert an assurance and point out the detriment he underwent when he moved in. The critical evidence may be a single conversation. There may be no one to speak for the deceased.

Historically, the need to have an attested will to succeed to property on death was viewed as a means of avoiding such claims. But the existence of estoppel and other doctrines circumvents this prohibition. Some authorities (for example, Re Gonin [1979] Ch 16 per Walton J) indicate that a judge’s approach to these claims should be ‘cautious’, but that is an uncertain guide.

The evidence may be vague or in conflict, but the outcome is always certain: the facts are either proven, ?or they are not. There is no discount from the final award for degrees of doubt. In consequence, a claimant who just barely proves his case may still scoop the pool. The litigation risks for both the claimant and the estate may be great, but so might be the reward.

The executors appealed the decision, essentially on two grounds. The first was that the judge had held that Bill had sent Roger a letter setting out the basis on which they were to come to live with him. According to the judge, this letter did not contradict the verbal assurances which (he found) Bill had previously made to Roger and Denise.

The executors have argued that the letter makes it plain that there was no gift of the house, and that whatever Bill had previously promised, by the time of the letter, such an assurance could not be relied upon.

This point, however decided, is unlikely to create any new principle of law. It does illustrate a possible piece of advice for testators; and a risk. The piece of advice is that if an elderly testator is inviting a relative to live in their house, it would be prudent to put the basis of the offer in writing, and to get it signed by all parties. The risk is that even a letter might not be conclusive. It should be drafted to make it plain what is the limit of the relative’s entitlement.

Appropriate remedy

The second ground of appeal could be more far reaching. Having found that an assurance had been made, and that a ‘bargain’ had been struck, as noted above, the judge applied the guidance given by Robert Walker LJ in Jennings v Rice and held that the usual and appropriate remedy was to complete the bargain by awarding what was promised, in this case Lower Manaton.

The executors challenged this on various grounds:

1. The award was ‘disproportionate’, and ‘proportionality’ was a fundamental requirement of proprietary estoppel (see Henry v Henry [2010] 1 All ER 998 per Sir Jonathan Parker at [65]). One difficulty with the ‘requirement of proportionality’ in estoppel was that the cases spoke with different voices as to what the remedy had to be proportionate to. Was it the promise? Or the detriment? Or a combination of both? Or simply relative to the ‘unfairness’ that arose from the withdrawal of the assurance?

In which case it simply came down to doing what was ‘fair’, which gave no one much assistance in predicting what a court might do in any case. Putting that to one side, the executors argued that whatever analysis was adopted, the judge’s award was plainly too much.

2. The judge failed to take into account the compensating benefits that Denise and Roger had already had. Not only had they had a decade’s rent-free accommodation in the house, but they had retained their former house in Sheffield, which they had let out for rent. He also erred in appearing to think that in order to weigh up the detriment and benefits he had to give these a financial value, which he was unable to do.

?3. The guidance in Jennings v Rice is itself wrong. Not only was the present case not really a ‘bargain’ case, there were ‘degrees’ of bargain – some were obvious; others were more obscure. Robert Walker LJ’s suggestion that where a bargain existed the court would carry it out unless it was “out of all proportion to the detriment” suffered was far too prescriptive, shoe-horning too many cases into an outcome that was not fair. It also made it far too difficult to advise clients: how can anyone apply the ‘out of all proportion’ test with any real degree of certainty?

The fear is that if trial judges find the facts difficult, they revert to default mode under this test, which is to let the claimant have what he was promised. ?The executors argued that the relief granted should in general reflect the relative’s net detrimental reliance, not ?the promise.

The judgment has been adjourned until October. Whatever the result, it must surely be good practice for a solicitor taking instructions for a will to ask an elderly testator if there were any relatives living with them, and if so, the basis for such residence and whether any promise about inheritance has been made to them. Whether one should go further and advise the testator to reduce the basis of that occupation into writing is a question for the exercise of the solicitor’s judgment.

In Bradbury v Taylor, and in the earlier cases of Gillett v Holt and Shirt v Shirt, litigation ensued when the testator was still alive, but was said to have changed his mind. But in most cases the taking of clear instructions as to the basis of occupation, and their communication to the relative, will tend to reduce the prospect of the sort of post-mortem litigation that ends with the estate being substantially depleted in legal fees, whoever wins in the end.

If litigation does ensue, it must improve the testator’s prospects of successfully defending the claim – on ?the basis that he will be around to ?give evidence.

The Court of Appeal on 4 October 2012 upheld Roger Taylor's  claim to Bill's home. For the full judgment, see https://www.bailii.org/ew/cases/EWCA/Civ/2012/1208.html