proving estoppel

[nottslad]

hi guys, wondered if anyone could help please?

 

My recently deceased grandmother owned several fields, one of which she had always promised to my dad, the rest of the land was promised to his siblings on a sale and break-up basis.

 

Several promises were made that my dad would inherit this land, such as "do what you see fit, it will be yours one day" and at one point there was a suggestion my dad may wish to seek planning permission for the land to build a house for him and my mum.

 

Her will contained something entirely different in that three of the six siblings who were due to inherit (one took his share when my grandfather passed away) would have £10,000 each, the rest of the estate, including a farm house and several fields would be split among the other three siblings, making a share of C.£100k each.

 

I understand that a caveat can be entered in order to stop the grant of probate, but what is the next step? my dad really can't afford to employ a lawyer and with the history there is a clear case for estoppel

[BazzaS]

hi guys, wondered if anyone could help please?

 

My recently deceased grandmother owned several fields, one of which she had always promised to my dad, the rest of the land was promised to his siblings on a sale and break-up basis.

 

Several promises were made that my dad would inherit this land, such as "do what you see fit, it will be yours one day" and at one point there was a suggestion my dad may wish to seek planning permission for the land to build a house for him and my mum.

 

Her will contained something entirely different in that three of the six siblings who were due to inherit (one took his share when my grandfather passed away) would have £10,000 each, the rest of the estate, including a farm house and several fields would be split among the other three siblings, making a share of C.£100k each.

 

I understand that a caveat can be entered in order to stop the grant of probate, but what is the next step? my dad really can't afford to employ a lawyer and with the history there is a clear case for estoppel

 

For proprietary estoppel, there must be an assurance by the promissor, the promissee must rely on that assurance, and the reliance must be "detrimental reliance".

 

In relying on the promise, did your dad act to his detriment? (so caring for your Gran AS A CONDITION of the promise, or working the land with the expectation from the promise that the land would go to him, or such)?

[andydd]

You say there is a clear case of estoppel but only if there is proof of the promises made.

[steampowered]

Have a read of http://en.wikipedia.org/wiki/Proprietary_estoppel.

 

The key point is that your Dad would need to demonstrate reliance on the promise. For example, some of the cases have concerned a situation where the claimant applied for planning permission, or worked on the land for several years, or renovated the house. Without reliance the promise is not legally enforceable. Does this apply to your Dad?

[BazzaS]

Have a read of http://en.wikipedia.org/wiki/Proprietary_estoppel.

 

The key point is that your Dad would need to demonstrate reliance on the promise. For example, some of the cases have concerned a situation where the claimant applied for planning permission, or worked on the land for several years, or renovated the house. Without reliance the promise is not legally enforceable. Does this apply to your Dad?

 

Reliance alone wouldn't suffice?

It must be "detrimental reliance"? Causing him to do something he otherwise wouldn't that caused him a disbenefit, or caused him not to do something he otherwise would have done for his benefit.

 

("If you work that land, one day it'll be yours" or "if you don't move in so cousin Sam can live in the house [under a license, not a lease] instead, it'll be yours when I'm gone" :

Detrimental reliance)

[nottslad]

Hi all

 

Thank you for your responses so far

 

I believe the detriment argument could be argued by the fact that my parents sold their house in the belief that they were due to inherit an equal share of the estate, choosing to rent a property up until the inheritance were to come through.

 

In regards to reliance, my dad and his brothers who have been given a smaller share worked other parts of the land as a small farm for many years, particularly since my grandfather passed away over twenty years ago.

 

My parents had also occupied one of the fields, using it as grazing for horses. In the belief that they would inherit the land my dad built a block of stables and several large sheds for farming equipment (big enough to house a lorry, combine harvester, tractor, so not a small or inexpensive structure!)

 

Also there were delipadated buildings that my dad has kept repaired and maintained in the belief he would inherit, had he not done this they would have inevitably fallen down.

[steampowered]

Reliance alone wouldn't suffice?

It must be "detrimental reliance"? Causing him to do something he otherwise wouldn't that caused him a disbenefit, or caused him not to do something he otherwise would have done for his benefit.

Yes, I agree.

 

Nottslad, it sounds like your dad has good evidence of reliance.

 

The big problem for your case, then, is likely to be proving the promise that was made. Do you have anything in writing or any circumstantial evidence about this?

 

This is not going to be a small claim, which means that if this ends up in court the loser will have to pay the winner's legal costs. Proprietary estoppel cases are also quite legally complicated. Its best to try and resolve this with the other beneficiaries if possible.

[nottslad]

Hi Steampowered

 

Whilst there is nothing quite so explicit in writing, we do have copies of previous wills, firstly my late grandfather's which showed everything would be shared between the six children, and also a previous will of my grandmother's which said roughly the same but bequeathed a few sentimental items to one of my aunts (such as a watch, that type of thing, nothing too valuable)

 

The will was changed in recent years whilst my gran had undiagnosed brain tumors (multiple trips to the hospital, scans etc should show a history). It's probably just speculation on my part but there is a possibility she was influenced by those who have inherited the majority of the estate to make this change and possibly wasn't of sound mind at the time.

[steampowered]

It doesn't sound like you have anything solid unfortunately. Ideally you would want some witnesses who can support your dad's story. Without this it might not be impossible to convince a judge after full disclosure of the facts and a convincing witness statement, but it would be difficult.

[nottslad]

My mum has mentioned that at least three of the other siblings witnessed this and there were inquiries made about planning permission however the decision was made not to go any further when a surveyor said it would be unlikely to be granted (the field is outside of the main village curtilage)

[steampowered]

If any of the siblings can support his story, then that would help.

 

I'm not sure a caveat is really appropriate here. My understanding is that caveats are for challenging the validity of a will. Here you are not so much challenging the validity of the will but rather claiming that your dad already has property rights in the estate.

 

I'm not 100% sure but, if the executors don't agree with your dad's claim, I think this might have to be dealt with by filing a court claim against the estate using form N2. I think it is worth seeking advice from an estate litigation specialist.

[nottslad]

thanks for the advice steam - I'm toying with the idea of writing what would almost be an LBA to the main beneficiaries and setting out why the other parties feel there is a claim of estoppel; wondering if the letter is worded in the right way and sent by all three of the siblings who have ended up with a lesser share whether this would open negotiations for an out of court settlement, therefore avoiding a lengthy and costly process

[steampowered]

It will be difficult but got to be worth a go. I imagine the other siblings will have never heard of proprietary estoppel, presumably they will start from the position that they want what is stated in the will and might need some persuading.

 

Just in terms of legal terminology, this is a case of proprietary estoppel. It is a different legal doctrine to other kinds of estoppel like promissory estoppel.

[julior]

this is nottslads mum, having managed to register myself, can I also ask advice on the possibility of having to be offered the field first to buy when it is sold. The whole situation is very worrying and we need to know everything we can re compensation for money and time spent upkeeping it all for the last 25 years. Also 2 of ther siblings which inherit the bulk took her to change her will 18 months ago after also taking her to the doctor for a letter saying she was of sound mind, even though she had been having treatment for high blood pressure for 3 years which the gp said was the cause of her headaches. On hindsight she must have had the brain tumours for some time as after the diagnosis she only survived 7 weeks. We feel really stuck at the minute and need help, financially we can't afford solicitors fees as if we lose it would cost tens of thousands which we don't have. Any advice, no matter how trivial you think may help us so please feel free to try and aleviate some of our worry.

[steampowered]

Hi, from a strict legal perspective I don't think you could have a right to buy the field.

 

However this could be an option for settlement. Buying the field from the siblings at a discounted price could be a good compromise. It sounds like the key might be to put this issue on the table as soon as possible, explain why you think you are entitled to a share of the land for proprietary estoppel reasons, letting the other siblings that you mean business and see what their reaction is and whether they are prepared to compromise.

[julior]

thanks for that steampowered, my husband has asked to see the bank statements now and although he asked his eldest brother as he is one of the executors and strangely one that doesn't stand to inherit a large amount, one of the others has said they are fed up with his attitude and he is acting like a 2 year old, which to me makes me think they are getting worried. My husband hasn't spoken to them at all and we have just returned from holiday so don't know why they don't like his attitude. The ones that don't feature in the main are all questioning where her money has gone and she did tell them all at some point she has bought new cars and helped failing businesses etc recently so they are prepared to get the police and inland revenue involved if necessary. It's so frustrating as they are lading them on to their faces but saying stuff behind their backs which does wind people up. Do you know if discounts when buying are a matter of course?

[steampowered]

No, discounts when buying are not a matter of course. Just a possible way to compromise.

[julior]

Hi out there, more advice needed please. As stated above we have been renting the field with our horses, there is a lot of value tied up with the animals, tack etc. Totalling in excess of £40,000. Hence my concerns to be told this evening that one of the sisters has taken someone there today without our knowledge to view. Probate hasn't been granted yet and no valuations in yet. I find this unacceptable as it could have been anyone, and there are lots of thefts within the horse world. Does anyone know that if they should give us a certain amount of notice to look? Also our solicitor did say we have to have at least a years notice but she had told one of the valuers we were getting off it soon. She is the one that is calling all the shots. I am now thinking of writing to their solicitors expressing my views but I need to know legalities before I do this - please help

[steampowered]

Personally I'm not really aware of why there would be a requirement to give notice or wait a year. I'm not saying your solicitor is wrong, just that I don't know what the reason for saying they must wait a year would be.

 

 

In any event, I think it would be sensible to write to the executors and perhaps the other siblings setting out your position on the matter. Its best for everyone to get this on the table, especially if they are thinking of a sale. This letter should probably some from your solicitor.

[julior]

it's something to do with agricultural law re a years notice. One of the executors is aware of the wish to buy. No valuations have come in yet so don't know what to offer. Just think notice would have been appropriate due to the animals etc, it would have been common courtesy. The solicitor we used consulted one of the experts in that side of it from their large firm. Think now we going to try and contest the will due to the fact she had undiagnosed brain tumours at the time she changed her will 18 months ago and why was she taken to the doctor to get a letter saying she was of sound mind before she went to her solicitor? One of the main benefactors arranged all this and she is the one who took that person there yesterday. Taking in to account that the old lady admitted to being bullied by her 3 years ago it is very suspicious. Waiting for the bank statements to decide for sure.

[BazzaS]

why was she taken to the doctor to get a letter saying she was of sound mind before she went to her solicitor.

 

They anticipated someone might say "she wasn't of sound mind when she changed her will" and wanted proof that she was competent to make a new will?.

 

Proprietary estoppel (if proven) would take effect regardless of the new will.

[julior]

that sounds like you agree with us then and they knew it was out of character and impulsive to do it. It's all very suspicious and underhand. Clearly the brain tumours affected her and as medical staff failed to diagnose them, just the gp telling her it was a blood pressure headache for the past 3 years proves there was something seriously wrong. It was allegedly the gp who wrote the letter saying she was of sound mind - very questionable. There has been talk of the sister going to sue the nhs for failing to diagnose

[julior]

I have just found this - worth a look for non agricultural folk https://www.gov.uk/agricultural-tenancies

[BazzaS]

that sounds like you agree with us then and they knew it was out of character and impulsive to do it. It's all very suspicious and underhand. Clearly the brain tumours affected her and as medical staff failed to diagnose them, just the gp telling her it was a blood pressure headache for the past 3 years proves there was something seriously wrong. It was allegedly the gp who wrote the letter saying she was of sound mind - very questionable. There has been talk of the sister going to sue the nhs for failing to diagnose

 

Sadly, on the limited facts we have here, I think they'd be able to put a different emphasis on it.

 

They'll say they knew you'd be put out & say "it wasn't in character" which is why they took her for an objective opinion, to show she was competent. They'll suggest it was a neutral act, not inspired by any malice, but to assist a court if it came to court.

 

They'll say that regardless of the fact she may have had a brain tumour, the lack of objective signs shows:

1) there was no negligent medical assesment, as the signs weren't there

2 ) as the signs weren't there (because she appeared competent), she was competent.

 

They'll say "this wasn't a 'has she got the slightest chance of a brain tumour' test, this was a competency test.

She showed she was competent, so regardless of if there was a hard to detect brain tumour (which wasn't affecting her competency), she must have been competent"

 

This would be an uphill struggle to oppose : unless the visit wasn't documented as a "competency assesment"

 

I must admit to the risk of me being biased by my (limited!) experience of such.

I'm aware of an elderly, independently wealthy man, who wanted to change his will. He knew the change would later be subject to claims of being invalid.

He arranged to see (seperately) two eminent Consultants in old age psychiatry, asking them to asses him and his competence - explaining clearly to both what he wanted (and why). When the inevitable happened, and the new will was opposed, it was held to have been valid - his wishes were clear.

 

You might want to look at how the competency was assessed (was this a GP as part of a routine visit for something else where it was "added on" as an afterthought?, by the GP as the main reason for the consultation? Or by a specialist in old age psychiatry with competency bring the reason for the consultation ?)

The further towards the latter, the harder you'd find it to persuade a court it wasn't a valid assessment of competency.

[julior]

I'll try and find out but believe it was with a gp. She had openly told her children who weren't sponging off her that she was being bullied, however she was a bit of a drama queen but easily manipulated. The "poor daughter" who only earns £5 an hour cleared off on a fortnights cruise 3 weeks before her death - knowing she could have gone by the time she got back. However she was the only one who cared. These are quotes from the daughter by the way