Probate and Will, Trust & Estate Disputes

Don’t make empty promises…

We recently acted for the wife of a deceased who died in 2012. His last will was signed shortly before his death, and left his entire estate to his wife, our client. The executors of the deceased’s estate were our client, their son and a close family friend.

The main asset of the estate was a farm made up of a number of property titles. The property was transferred into our client’s sole name and the estate administration was subsequently completed. However, prior to the transfer, a dispute arose over the farm. Our client and the deceased’s son were living and working on the farm and the son was disgruntled by the fact his father had not left a share to him. He refused to leave the farm and so our client had to issue legal proceedings to remove him. Our client sought possession of those parts of the farm which were occupied by the son together with damages for that occupation and for nuisance, and damages for the son as co-executor breaching his duties, including interest and costs.

The son filed a defence to the claim and brought a counterclaim for proprietary estoppel, i.e. a claim to enforce a broken promise. There are 3 elements to such a claim:

  1. Promise – a representation or assurance has to have been made to the person bringing the claim;
  2. Reliance – the claimant has to have relied on that promise; and
  3. Detriment – the claimant has to be able to show that they have suffered some sort of detriment as a result of the reliance.

Claims of this kind are not uncommon in the farming context.

In this instance, the son asserted that prior to his death, his father had expressed a wish and intention to transfer the farm to his son, and that the son then agreed with his mother (our client) that such a transfer should take place.

Some months later, the court proceedings were stayed, i.e. put on hold to enable the parties to attempt to settle their respective claims. A mediation took place and an agreement was reached but the son later reneged on the terms of the agreement and so the settlement fell apart. After some time, during which further negotiations were ongoing, a further agreement was reached. This time, the entire farm was transferred to the son on receipt of a lump sum payment.

This example and the recent proprietary estoppel cases which have been heard by the courts, should act as a stark warning to discourage empty promises and encourage open conversations with family members. Failing to act consistently and carefully during your lifetime, may result in costly and lengthy litigation for your loved ones following your death, and perhaps more importantly, the breakdown of family relationships.

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