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Promises made during your lifetime can affect your Will

Approximately 40% of people make a Will to deal with the distribution of their estate after death but many of those testators will not be aware that it is possible for the distribution of their assets to be affected by actions taken during their lifetime.

The doctrine of proprietary estoppel provides that if an individual makes a promise, representation or assurance to another individual during their lifetime and that person relies on that promise and, as a result, acts to his or her detriment then, if the Will of the person making the assurance contravenes that promise, on application the courts will intervene to prevent “unconscionable conduct”.

A typical scenario where a claim against an individual’s estate under the proprietary estoppel doctrine might arise is if an individual were to move into an elderly person’s home to care for them and was assured by the elderly person that in return for that care the house would be left to them. As a result, the carer provides care for free and gives up paid employment, only to find after the elderly person’s death that the house had in fact been left under their Will to another person. In that scenario, the court could find, provided there was evidence to support the carer’s assertions, that the doctrine of proprietary estoppel applies and that the gift under the Will should not take effect as drafted.

It is not sufficient for there just to be a promise (a “one day all this will be yours” scenario), the person to whom the promise is made must also rely on it and, as a consequence, act to his or her detriment. A number of cases claiming relief under the proprietary estoppel doctrine involve farms and farming families. To read about the latest case click here.