When is it possible to challenge a Will?

When is it possible to challenge a Will? Howard Lee from Mogers Drewett Solicitors explores

Generally, a person is free to make and change their Will to leave their estate to whoever they wish. However, discrepancies can arise particularly in cases where the deceased owner gave assurances during their lifetime that someone would receive an interest in their land or property, but on death it was not reflected in the Will. Is it simply a case of hard cheese? Well not always. Something called proprietary estoppel can come into play particularly when an owner has encouraged another to spend money on the land or work in their business for low pay, or even allowed the person to deal with the land in the belief that they had a legal right to inherit. However, the owner in the meantime would stand by and say nothing, even though they had no intention of honouring the assurance in their Will.

As you can imagine proving a claim can be extremely difficult, but not impossible. The modern law of proprietary estoppel has a number of key elements to be established which are; an assurance or representation made by the owner, although that does not need to be in writing; reliance on the assurance or representation by the person making the claim; detriment suffered by the person making the claim; and unconscionability. All of this sounds hugely complex, so perhaps the best way to explain the legal jargon is to look at a couple of cases.

In the case of Thorner v Major (2009), a farmer promised, in exchange for working on his land for little or no pay, that a young relative would inherit the farm in his Will. The farmer then changed his Will and the relative did not inherit. However, the court decided that the assurances and the continuing pattern of conduct of many years, particularly as the relative was working for little financial remuneration, amounted to proprietary estoppel. As a result, the relative received the farm as he had been promised, as it was unconscionable for him not to.

In a more recent case, again involving a farming family, Davis & Another v Davis (2014) the court again upheld an estoppel claim. Even though the daughter who made the claim had not worked on the farm on a continuing basis, she was still reliant on the representations of her parents and acted to her detriment during the period. She was therefore entitled to an interest in the farm.

The recent cases show that the court will make a proportionate award to see justice in all the circumstances of the case, but that does not necessarily mean that the person would receive the entirety of the land or property in dispute.

For further information or specialist advice on this subject please contact Howard Lee and see www.md-solicitors.co.uk or call 01935 813691.

Mogers Drewett

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