Challenges to Wills are on the increase by some 200%. The problem? Farmers! Well actually, the problem is the rather tricky legal concept of Proprietory Estoppel. It just seems to be coincidence that Farmers, for some obscure reason, tend to land themselves “in it” on a regular basis.
There is a fundamental concept in English Law of Testamentary Freedom. In essence, you can give your wealth away to anyone you please. Readers of our Blogs may be aware of how legislation has eroded this in the case of certain classes of individual who seek reasonable financial provision (The Inheritance (Provision for Family & Dependants) Act). However, apart from claims under the latter 1975 Act, farmers do like to frequently give assurances of their intentions to leave a farm to a relative, who often works full time (for their entire life) without any remuneration!!! The problem is that when the farmer dies, either a Will or the Intestacy Rules (laid down by Parliament for when you die without a Will) provided for a completely alternative distribution and the “poor” relative receives nothing!
The most recent case upon this point reached the House of Lords only last year. In this case, the “disinherited” relative, who had worked for free, had to establish:
- That a Representation (or Assurance) had been made to him;
- That he had relied upon that Representation / Assurance; and
- That he has suffered detriment in consequence of his (reasonable) reliance on the Representation / assurance.
The farmer and his relative “(lead a difficult life)….committed to …hard and unrelenting physical work…..largely unrelieved by recreation or female company”. What was of great debate before the Court was the fact that there was no “signature event” – the utterances “I am going to leave the farm to you…” were never made.
Rather, the farmer used oblique and allusive terms, over a prolonged period of time, which if examined minutely and in isolation, may appear insignificant, but collectively demonstrated a continuing pattern of conduct. The House of Lords disagreed with the Court of Appeal that the assurances needed to be “clear and unambiguous”. It was reasonable that years of experience enabled the farmer’s utterances and actions to be interpreted by his relative, causing him to form a reasonable view that the farmer was to gift the Farm to him. The clarity sought to establish the assurance was “hugely dependent on context”. The relative could take the assurances at face value and rely upon them.
Clearly, the Law will protect a person who has acted to their detriment in reliance on an assurance, and that the assurance need only be “clear enough” between the parties themselves. Whether this is an unwelcome erosion of a person’s freedom to gift away property on death without restriction or the upholding of justice and fairness to achieve the right decision for an individual who has acted throughout their life to their detriment is a close call.
Consideration of your conduct pre death must be undertaken at the Will writing stage and some genuine “soul searching” and introspective analysis of past and current actions, behaviour and conduct necessary in order to establish whether a relative / friend has been labouring under a perceived assurance from you that they are to inherit a proportion of your assets upon death.
Our advice at Gregory Abrams Davidson is that now is the time to “come clean”. Once a potential “claim” is identified, we can:
- assist in arranging your affairs to counter it or;
- organise your affairs to “support it” if in fact you have every intention of honouring the assurance.