27 March 2015 by Veronica Ivanova

A promise made is not necessarily a promise kept…

The recent case of Lothian v Dixon and Webb (2014) shows the flexible approach Courts are willing to take when considering Wills and lifetime promises and also emphasises the importance of reviewing your Will regularly.

In this case the deceased made a Will in 1983 leaving her estate equally to her cousins Mrs Lothian and Mrs Webb. In September 2010, the deceased asked Mrs Lothian to stay at the hotel she owned in Scarborough on a full-time basis to help look after her following a diagnosis of terminal cancer and to assist with the management of the hotel.

However, the deceased realised that this was a big favour to ask, because Mrs Lothian lived in Scotland and her husband had his own business there, so she offered to leave her entire estate to the couple if they would be willing to do this. The couple accepted the offer. Mrs Lothian spent the majority of the next two years at the hotel, taking care of her cousin and the hotel whilst Mr Lothian visited at weekends and performed general duties in the hotel.

In 2012, the deceased instructed her solicitor to make a new Will leaving her estate to Mr and Mrs Lothian but died before signing it.  As a result the 1983 Will was still valid and so was treated as the last Will of the deceased. Mrs Lothian made a claim trying to enforce the promise made by the deceased, relying on the doctrine of proprietary estoppel. In order for such a claim to be successful, the following criteria needed to be satisfied:

1)    Someone made a promise;

2)    The recipient of the promise relied upon it; and

3)    The recipient did so to their detriment.

These elements must be present to such a degree that it would be unreasonable for the Court not to grant relief. However, the Court has a wide discretion and, even if it feels it should honour the promise made, it does not need to do so fully and can instead award a different or lesser amount to the recipient of the promise. Mrs Webb sought to challenge the detriment that Mr and Mrs Lothian suffered, and argued that they received numerous benefits in the form of free board and lodging whilst staying at the hotel, and therefore the Court should not honour the promise in full.

The Court had to decide whether in the circumstances it would be unreasonable for the deceased’s promise not to be kept even if there was no initial legally-binding agreement. The Court felt that the support provided to the deceased amounted to a substantial detriment and so the proportionate relief was to award the claimant (Mrs Lothian) the entire net estate after satisfying any legacies payable under the Will.

The lesson here is that the Court will retain a flexible approach with regard to whether a promise made by someone during their lifetime can be enforced after their death, irrespective of what they have stated in their Will. In light of this, a much easier, less time consuming and more cost effective option would be to review your Will at least every 3 to 5 years in order to avoid involving your beneficiaries in expensive and often stressful Court proceedings.

For further advice, to update your Will or to discuss a claim of this nature, please contact Michael Culver in our Wealth and Estate Planning Team on michaelculver@boltburdon.co.uk or 020 2788 4741.

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