Testamentary promises

The recent CouRT of Appeal ruling in Thorner v Curtis [2008] EWCA Civ 732 has, somewhat surprisingly, overturned the first instance decision of Mr John Randall QC ([2007] EWHC 2422 (Ch)) on the issue of whether an express promise, as opposed to merely an expectation or belief, is necessary to give rise to a proprietary estoppel claim in the context of a claim against a deceased's estate. The position now is that the relevant assurance must amount to a clear representation which is intended to be relied on by the claimant.

Promise or mere hint?

The deceased owned a farm and substantial savings. From 1976 onwards, the claimant worked on the farm for no remuneration and by the 1980s had come to hope that he might inherit it. Unfortunately, although the deceased had made a will in 1997 leaving the residue of his estate, including the farm, to the claimant, this was later revoked and the deceased died intestate.

The claim, based on proprietary estoppel, centred on various hints and remarks which the deceased had made over the years, which the claimant argued led him to believe that he would inherit the farm.

First instance

The deputy judge held that an actual promise was not essential to found a proprietary estoppel claim. The authorities indicated that the relevant representation could take the form of a simple encouragement in a belief, either by words or conduct or passively by remaining silent, (see, in particular, Ramsden v Dyson (1866) LR 1 HL 129, at 142). Accordingly, the court should not be tied down by semantics: 'an assurance is an assurance whether made expressly by words spoken or written, or made by implication from words spoken or written or from conduct' (ibid, at para.19).

No estoppel

Lloyd LJ, giving the judgment of the court, disagreed. In his view, the deputy judge had been wrong to find that an estoppel claim, in relation to property to be left by will, could be based on anything less than a clear promise that the claimant would inherit. In the instant case, the representation was merely a matter of implication and inference from indirect comments and conduct. That was simply not enough. The judge noted that, in all the cases on testamentary promises, the relevant assurance had been made expressly. In Re Basham (dec'd) [1986] 1 WLR 1498, for example, the deceased's assurance to his stepdaughter was that she did not have to worry about money because 'she would be all right'. As a result, she continued working for his business unpaid as opposed to getting a regular job elsewhere. Similarly, in Gillett v Holt [2001] Ch 210, the deceased had made repeated promises over many years that the claimant would inherit his farming business. In particular, in response to a specific request by the claimant for something in writing, the deceased said: 'that was not necessary as it was all going to be yours anyway'.

Other examples include Campbell v Griffin [2001] EWCA Civ 990, in which the claimant was repeatedly told that, whatever happened, he would have a home for life; and Grundy v Ottey [2003] EWCA Civ 1176, in which the deceased promised that the claimant would inherit a flat in Jamaica, which was later confirmed by a letter given to her. Although in these last two cases, the assurances were largely unprompted by the claimant, they were still clear and unequivocal. Moreover, in all the cases, it was apparent that the deceased had intended the assurance to be relied on by the claimant.

By contrast, in the instant case, a 'striking feature' was that the deceased never said anything to the claimant which amounted to a promise of inheritance. At its highest, the claim rested on things said which merely implied that the claimant was to become owner of the farm. Another 'notable aspect' of the case was that the acts relied on by the claimant (that is, working the farm) to support the estoppel were simply 'the continuation of what he had been doing before' (ibid, at para. 56). Unlike the position in the earlier cases there was no question of the deceased being motivated by a desire to persuade the claimant to continue working on the farm rather than taking up some other job opportunity elsewhere. The requirement, therefore, that the deceased had intended that his implicit statements should be relied on by the claimant was lacking.

A stricter approach

The Court of Appeal's rationale for adopting a stricter approach to estoppel claims, in the context of testamentary disposition, is that a testator should not find himself subject to an obligation to dispose of his property in a particular way simply on the basis of intentions that fall short of actual promises intended to be relied on by the claimant. In the words of Lloyd LJ, 'if what [the claimant] said and did [in this case] were sufficient to satisfy that test, the ingredients of proprietary estoppel in such cases would have been diluted in such a way as to create a dangerous precedent' (ibid, at para. 75).

Many, however, including myself, may think that this is an overstatement. After all, since Gillett, it is apparent that the doctrine does not rest on a rigid adherence to strict rules but on a more general inquiry into whether or not the intervention of equity is justified to prevent unconscionable conduct (see M. Pawlowski, 'Expectations and Promises' [2008] 93 TELTJ 4). As another commentator has also observed, it is not the nature of the assurance that is important here, but all the circumstances that cause unconscionability that lead the claimant to believe they will enjoy rights over land irrespective of the lack of formality (M. Dixon, 'Estoppel and Testamentary Freedom', [2008] 72 Conv. 65, at 68).

The point here is that the elements of estoppel must be applied flexibly to avoid unconscionability, notwithstanding the desire to maintain testamentary freedom and preserve the formalities of the Wills Act 1837.