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When is a promise a promise?

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Many people rely on ‘promises’ made to them by family and close friends and as a result, alter their lives based upon being told that “one day all of this will be yours”.

Two recent cases highlight the differing views of the courts on claims where an individual alleges that they relied upon a promise of land, which was not subsequently fulfilled. In legal terms, this is called ‘proprietary estoppel’.

These two cases differ in that one involved a promise allegedly made by someone who later died, which was not backed up by their will and the other concerned a promise made by someone who did not fulfil that promise upon retirement. These cases illustrate the importance of witness evidence in court. A claimant may have a claim for a proprietary interest in land if they can prove that a promise was made to them and that they then changed the way that they lived because they believed they would inherit that land at a particular point in time (i.e. upon the owner’s death or retirement for example).

James -v- James: who gets the land when the father dies?

In the recent case of James -v- James [2018], the deceased’s son, Sam, claimed that his father, Charles, had promised him land that had been part of a previous business. Instead, in his will, the father left the land to his wife and daughters.

In this particular case, the court could not rely upon the word of the father as he had passed away. Furthermore, the court could not find any other evidence of a ’promise’ besides the son’s allegations.

As a result, the court concluded that even if a promise had been made, the son could not demonstrate sufficient detriment and had worked for the family business, receiving a fair wage in return.

Gee -v- Gee: who gets the farm when the father retires?

In contrast, another recent case, Gee -v- Gee [2018], did not involve any deceased parties but did evidence how the basis of proprietary estoppel can work.

This case concerned a farm in Oxfordshire, which was originally owned by the first defendant, John Richard Gee.

One of the farm owner’s sons, John Michael Gee, argued that upon retirement, his father transferred the majority ownership of the farm to his other son, Robert, even though he had always been promised that the business would be passed down to him.

As a result, the claimant son relied on this promise coming to fruition and had worked long hours for low pay to his detriment. Had the farm not have been ‘promised’ to him, the claimant son felt that he would have left the family business and chosen a higher paid profession to provide a better quality of life for himself in the future.

The conclusion of this case came down to witness evidence and a throwaway comment made by the father. When asked at the end of his cross-examination, whether Robert and his wife had persuaded him to change his mind and transfer the farm to them because it would be in safer hands, he replied: “and I should think so too, it’s about time.”

The court took this as a contradiction of earlier claims that no promise had ever been made. The court concluded that actually, the father had always intended to leave the business to the claimant son but, after a family dispute, he had changed his mind and transferred it to Robert instead.

The outcome could have been very different if the dispute had arisen after the father’s death. The father would not have been able to be cross-examined and the court may have felt that the claimant son could not have evidenced the promise.

In any event, the court’s view was that all three stages of the test were complete: a promise had been made, the claimant son had relied upon it and he suffered the detriment of remaining at the farm rather than looking for better-paid work.

Conclusion: what can we learn about making promises from these two cases?

It is notoriously difficult to prove proprietary estoppel. After all, either the person making the alleged promise has passed away or they are now denying all knowledge. Witness evidence and how witnesses come across in court can be key; it is not just the claimant’s evidence that is tested, but others who can corroborate or oppose the claimant’s case.

In an ideal world, promises will be recorded in writing so that there is concrete evidence of what has been agreed. This is, of course, not always possible and parties regularly find themselves in such disputes.

The difficulties around proprietary estoppel cases and the nature of proceedings mean that it is always best to try and settle disputes before you put the question into the hands of a judge. There will always only be one winner in court and you could find yourselves with a large costs bill if you are ultimately unsuccessful.

For further support and information, please contact our Contentious Probate specialists.

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