show image

Where there’s a will, there’s a way

Sometimes promises are made and not kept, and that makes thinking ahead all the more important regarding your Will, writes Andrew O'Keeffe

The fact that there has been a recent flurry of cases where family members are claiming that they have been disinherited having been promised either a relative's entire estate (or part of it), is a timely reminder of the need to give proper consideration to who should benefit from your estate when preparing your Will.

One such case concerns Stephen Moore who successfully claimed in September 2016 that, after having toiled on the family farm since childhood, often for over 100 hours a week, he should receive the entirety of the 65 acre, Grade Two listed, manor farm house and estate worth £10 million following his father's death on the basis that his father had promised him that 'one day all of this will be yours'. This case is back in the news because Stephen's mother (who otherwise stood to benefit under the Will) has been given permission to appeal to the Court of Appeal. This case follows hotly on the heels of the news of another similar claim. In that case, Sam James claims that he should be entitled to the entirety of Pennymore Pitt Farm in Dorset, having worked on the farm and for the family business for 35 years. The claim put forward by Sam is that his father, Allen, who was a self-made business man, promised him the entirety of the farm. This is disputed by Sam's mother Karen. Judgment in this case is still awaited.

One question that is often asked is how do these claims succeed when the promise is not backed up by the terms of the promisor's Will? The answer is that our legal system is empowered to put right morally unconscionable conduct. In both of the above cases, the sons rely on the long standing promise made to them by their respective fathers that the farms on which they had worked hard (for what appears to be very little pay) would pass to them on their death. Allied to the reliance upon that promise (which has to be clearly established at trial), the sons also have to show that they have acted to their detriment. It is easy to see in circumstances such as these that had the sons known that the promise would not be kept, they could have made a decision earlier in their lives to pursue an alternative career. By not doing so they say they have acted to their detriment. If all the elements (a promise, reliance on it and acting to their detriment) are proved this gives rise to the legal doctrine of "proprietary estoppel". It is this type of claim that both Stephen Moore and Sam James are pursuing.

As our Courts have an ability to carry out 'equity' or, more colloquially, 'do the right thing', it is perhaps easier to see how a promise that has been made over many years should still be held to bind Sam and Stephen's respective fathers and overrides the terms of their Wills in respect of the property concerned (the agricultural estate). It would be unconscionable for a Will to be used as a vehicle to defect such a longstanding promise.

It would be much better to deal with these moral claims now than leave them to be the subject of very expensive litigation later; which in the case of the Moore family, appears to be one that shows little sign of being resolved without further considerable legal cost to all parties. A warring family and a fast dwindling estate is a legacy no-one wants to leave behind.

Andrew O'Keeffe is partner and head of private client at Wedlake Bell LLP