Down on the Farm Part 2: the promise that never was
Previously on Down on the Farm…
Generation pitted against generation. Sibling rivalry. Substantial assets.
Another familiar element in farm disputes is the claim for proprietary estoppel. This is when one individual gives clear assurance to another that an identified property will be their reward for working hard and spurning other opportunities. On the basis that they would eventually be “seen right”. To succeed in a claim of this type, the receiver of the promise must be able to prove that, on the strength of the assurance or promise, they laboured to their real detriment, relying completely on that promise.
Raymond Allen James –v- Karen James 2018
There were several aspects to this claim, made by the son of a self-made man who built up a farming and haulage business. During his lifetime and in his will, the deceased had transferred land to his daughters, causing his son, their brother, to form a claim.
Promissory estoppel: promise or assurance
The claimant stated that his late father had promised the land to him. The allegation went that the promise was made before part of that land was transferred to one of his sisters during the deceased’s lifetime, and that the remainder of land in the claim was then gifted to all three of the claimant’s sisters by the deceased’s will.
As an aside it should be said that the judgment of His Honour Judge Matthews could be seen as a masterclass, as to the judicial assessment of the demeanour of witnesses. In respect of the claimant the judge said “He was dogmatic, sometimes rather contrary, and not good at following legal reasoning. His frequent response to questions from counsel was “if you say so”… For the most part I think that is [he] had convinced himself that he was in the right, and interpreted all the material available to him in a way which demonstrated that he was. In some cases I am afraid to think he went further, and told me things that were simply not true… As a result, I found it difficult to place much reliance on what [he] said where it was not supported from an independent source.”
The judge said the claimant was unable to give reliable evidence of any particular promise or act that his late father would leave any particular property to him, let alone the whole of it. That was not totally fatal to his claim, however. The judge reminded himself that he had to look at the totality of the evidence following Thorner- v- Major 2009 where Lord Walker said that to establish a proprietary estoppel the relevant assurance must be “clear enough”. Following Hoffmann LJ in Walton-v- Walton 1994 “The promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made.”
The judge in James therefore held that there was nothing with the sufficient degree of clarity in the case which might amount to such an assurance. This meant looking not at what little had been said by the witnesses relating to the alleged assurance, but instead looking at the documents in the case and “the inherent probabilities”, which played a larger role in the judge’s fact-finding than they might otherwise have done.
An intention to make a gift by a will
One such document was a draft will (it was not signed) in which land was left to the claimant. The judge commented that “even if it had been signed, making a will in favour of someone is not the same as promising to leave property to that person. It is ambulatory, merely a statement of current intention, and can be changed at any time.”
An intention does not equal an assurance
The judge described as the “high point” of the claimant’s case, an alleged spoken assurance that “[the claimant] would be farming [the land] one day.” The Judge pointed out that the meaning of the spoken words (as opposed to those written) is a question of fact, and that “In the context in which it was made, and the given personality of the two persons involved (of the testator, reluctant to make any commitments, and [the claimant], keen to inherit his father’s property as the only son), I do not find this phrase to amount to a promise or assurance to leave the property to [the claimant]. As with making a will, saying that it was your intention to do a thing is not all the same as promising to do it…
In my judgment, there is a sufficient place on our legal system for a landowner to be able to express a present intention to leave property by will to another person but without making any promise to do so, such that he or she is not then bound so to leave the property even if that other, misunderstanding what the landowner has done, purports to rely to his or her detriment on a supposed promise. In my opinion the present case occupies exactly that place.”
Effect on third parties
The judge went on to examine the elements of reliance and detriment that would be required to make a claim for proprietary estoppel. Had such a promise or assurance been found, the effects of a proprietary estoppel award on third party beneficiaries needs to be determined. If the elements of proprietary estoppel were found to have pre-existed the other interests in the land, it would bind those later interests in the circumstances.
The claimant failed in his claim that his father’s will was invalid for want of testamentary capacity. The judgment upheld the current view that the common law test in Banks v. Goodfellow 1870 is to be preferred over the provisions of the Mental Capacity Act 2005 as to assessing testamentary capacity. Note was even made of the solicitors in the case not applying the “golden rule” in respect of having the will of an aged or seriously ill testator witnessed or approved by a medical practitioner.
As this article demonstrates, proprietary estoppel and testamentary capacity are complex areas of the law. If you need help to claim for what you believe you are owed, or you need to defend against a claim, then please call the wills, inheritance and trust disputes team on 01752 203500. Alternatively email me via angelo.micciche@GAsolicitors.com.