15 December 2017 by

“I was promised the house after her death but am now left with nothing in the Will”

It is not widely known but sometimes what you put in your Will may not be the last word on where your assets go after your death. A long held legal principle called “proprietary estoppel” can, in certain circumstances, unpick your Will and distribute your estate in accordance with “promises” you made to someone when you were alive that were inconsistent with the wishes in your Will. 

This week the Court of Appeal dismissed a caretaker’s appeal for a proprietary estoppel claim for a one-third share of a country house, a flat and a property business, owned by his former employer.

Proprietary estoppel claims are often brought after the death of someone when it is clear that a promise made during life has not been honoured in the Will – unusually in this case both parties were still alive. The caretaker, presumably because he suspected a promise made would not be reflected in the Will went to Court to get an order to ensure that his former employer’s promise would be honoured.

For any proprietary estoppel claim to be successful all of the following must be proved:

  • An assurance: this can be express or implied, or an active or passive assurance that the promisee has or will have rights in the property. The assurance must generally be clear and unambiguous.
  • A reliance: the promisee must demonstrate through their conduct that they relied on that assurance.
  • A change of position or detriment: the promisee must have acted to their detriment; for example, spent money on improving or buying land, or changing their employment.

In the case, the caretaker, Jason Patrick, worked for Daphne McKinley in 2003 as her ‘housekeeper and manager’, doing general maintenance and ‘handyman’ work at her country house. Mrs McKinley had recently been through a divorce that left her with considerable wealth, some £9.5 million in cash and residential properties.

Mr Patrick did a substantial amount of refurbishment work at the properties and an intimate relationship developed between them. However, Mr Patrick’s evidence portrayed it as a committed relationship with a view to marriage or long-term partnership, while Mrs McKinley said she had made it clear at the outset that she was not interested in a committed relationship and there was no question of any sort of joint business venture or partnership.

After the relationship broke up in 2008 Mr Patrick lodged his claim for a ‘proprietary’ interest in Mrs McKinley’s assets. He based it for the most part on her alleged statements and actions in 2003 and 2004, which he said had promised him a share of her assets. The three properties he had worked on were together worth about £10 million at the time of the first court hearing in 2014 when his claim was dismissed.

The Court of Appeal agreed with the High Court in rejecting Mr Patrick’s evidence as dishonest. There was, it said, no documentary evidence or independent witness to support his case that Mrs McKinley had given him the oral promises or assurances on which his entire case to a proprietary interest rested. He therefore fell at the first hurdle!

If he had been successful then arguments would then have followed and the court would have needed to decide what he should have received.  He would no doubt have argued for financial compensation for the change of position or detriment he would suffer if he inherited nothing under the Will.

While Mr Patrick was unsuccessful and proving a proprietary estoppel claim is not easy to do, these types of claims are on the increase.

You can contact one of our other solicitors in the Contentious Trusts and Probate team here.

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