Proprietary estoppel – Detriment – Remedy – Claimant son claiming probate of deceased’s will – Defendant heirs of predeceased son (E) resisting claim and counterclaiming proprietary estoppel in favour of E’s estate of deceased’s agricultural land – Claimant successfully appealing to Court of Appeal on issue of testamentary capacity – Case remitted to High Court to determine counterclaim – Whether detriment suffered in consequence of reliance on representations by deceased – Counterclaim dismissed
The deceased died in March 2017, aged 84, having lived all his life on Anglesey. His main assets were the bungalow (Arfryn) where he lived, 79 acres of farmland (Bwchanan), 58 acres of farmland (Yr Efail), a cottage (Derwyddfa) and a 50% shareholding in a family building company.
The deceased was survived by two of his children: the claimant and the first defendant. Another child (E) had predeceased him. His widow was the second defendant. They had three children. The third defendant represented himself and his siblings.
The deceased made three wills in 1990, 2005 and 2016. The 2005 will gave all the deceased’s agricultural holdings to E or his family. The 2016 will appointed the claimant and the first defendant as executors and trustees. It gave Arfryn and Derwyddfa to the first defendant and Yr Efail to the claimant. The remaining agricultural land was held on trust for the second defendant for life and thereafter in equal shares to any surviving children.
The claimant claimed a grant of probate of the 2016 will. The second and third defendants resisted that claim and counterclaimed, alleging proprietary estoppel in favour of E’s estate in respect of the deceased’s agricultural land.
The High Court admitted the 2005 will to probate: [2021] EWHC 1580 (Ch). But the Court of Appeal pronounced for the validity of the 2016 will: [2022] EWCA Civ 386.
The case was remitted to High Court to consider the proprietary estoppel point. The judge held that, if the 2016 will was valid, such an estoppel would arise. The Court of Appeal held that the judge’s findings in respect of representations made and reliance on them should stand. The issues of detriment and remedy were remitted to the High Court.
Held: The counterclaim was dismissed.
(1) A claimant seeking a remedy on the grounds of proprietary estoppel was required to establish that: (i) a sufficiently clear and unequivocal representation or promise was made or assurance given by the promisor in relation to identified property owned, or to be owned, by the promisor; (ii) he relied on the representation, promise or assurance; and (iii) he suffered detriment in consequence of his reasonable reliance. If those requirements were met, the court had to consider what if any remedy ought to be granted: Thorner v Major [2009] 2 EGLR 111 considered.
The principle said to permeate the different elements of proprietary estoppel was that equity was concerned to prevent unconscionable conduct. The court had to look at the matter in the round and take a holistic approach. There had to be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment had to be judged at the moment when the person who had given the assurance sought to go back on it: Gillett v Holt [2001] Ch 210 and Davies v Davies [2014] EWCA Civ 568 considered.
(2) The court’s task where the promise and the reliance had been established was to conduct an evaluative assessment of the detriment suffered by the promisee in reasonable reliance on the promise, considering any countervailing benefits obtained by the promisee by reason of his reliance. The court then had to ask whether the promisor’s failure to perform his promise was unconscionable, tested by whether it would be unjust or inequitable to allow the assurance to be disregarded; and in answering that question the court had to look at the matter in the round, having regard to the nature and quality of the promise, the nature and extent of the detrimental reliance, and all other factors that might affect the conscionableness of the promisor’s conduct. If the promisor’s conduct was held to be unconscionable, the court had to seek to fashion a remedy that would remove the offence to the conscience. In most cases the remedy would be to give effect to the promise; however, consideration of all the circumstances might lead to the conclusion that some lesser remedy will be sufficient: Guest v Guest [2022] UKSC 27; [2023] EGLR 2 considered.
(3) It was common ground that, subject to the precise terms of the promise, the death of the promisee was not in principle a bar to relief under the doctrine of proprietary estoppel but that it might be relevant to the questions of unconscionability and remedy.
In all the circumstances, E did not suffer sufficient detriment to make it unconscionable for the deceased to have failed to leave Yr Efail to his heirs in accordance with the representation and understanding found to have existed by the judge. The deceased partially fulfilled his assurance to E by leaving to E’s family all the agricultural land apart from Yr Efail. Moreover, the relationship between E and the deceased did not work materially to his disadvantage.
(4) The focus imposed on a case by a claim to proprietary estoppel made it important to be aware of the risk of adopting too narrow a perspective. In this case, when making an overall assessment of unconscionability, the court was entitled to take into account the failure of the company and its implications for the deceased’s known desire to make substantial and broadly fair provision for all three of his children.
The sad fact of E’s death had substantial significance. The promise or assurance that the farm would go to E when the deceased died became impossible as E was unable to inherit the land. That did not mean that no equity could arise in favour of E’s estate. Yet it remained relevant.
It appeared from the evidence as a whole that the counterclaim was really about increasing the value of the assets available to E’s family. That was a legitimate purpose but it had to be considered in the context of the other circumstances, including the changes of circumstance effected by E’s death and the failure of the company.
In all the circumstances, it was not unconscionable of the deceased to leave to E’s family only the agricultural land apart from Yr Efail. Therefore, the question of remedy did not arise.
Penelope Reed KC and Elis Gomer (instructed by Allington Hughes Law) appeared for the claimant; Alex Troup KC (instructed by Hugh James) appeared for the second and third defendants.
Eileen O’Grady, barrister
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