Can A Court Enforce Promises By A Deceased Person That Are Not Put In A Will?
With many deceased testators ensuring no assets are left to be allocated in a will to:
- avoid probate taxes;
- make a WESA ( Wills Estates and Succession Act) wills variation claim irrelevant;
disputed estate trust claims and proprietary estoppel claims are becoming more common.
Constructive Trust Claims Against Estates
To succeed on a trust claim you must prove the deceased benefitted, the person benefiting the deceased suffered an unfair deprivation or loss and there is no valid legal reason for this result.
A relatively new technique our lawyers are using is proprietary estoppel. In England, Canada and BC the courts have normally looked to three main elements as a foundation for a proprietary estoppel claim: a representation made to the claimant; reasonable reliance on the representation; and a detriment to the claimant flowing from the reliance.
If you have performed work, labour or made finical contributions of money or in kind and you have been left out of a Will after being promised a benefit on the testator’s death you may be entitled to money as compensation. Meet with us to negotiate mediate or take to trial an estate claim so you get a fair result.
Proprietary Estoppel Claim Succeeds Based On Oral Promises
The recent estate case of Sabey v. Beardsley, 2013 BCSC 642, allowed the claim by a non relative taken under the wing of two deceased horse farm owners. They promised the Plaintiff the horse farm to him on the basis he worked hard on the horse farm and that they wanted him to have the farm when they died. They drew wills that resulted in the farm going to another person although they had each signed an invalid written codicil that confirmed their intentions for him to receive the farm.
The Plaintiff was very credible and both oral and written documents supported his successful claim such that he got the entire farm the Judge said:
[1] This action is an estate case in which the parties dispute the ownership of a horse farm in Langley named Sansoucci. The farm was owned by Kim von Hopffgarten, who died in May 2011. In her will, Ms. von Hopffgarten left the farm to the defendant Burgi Rommel. The farm had previously been owned jointly by Ms. von Hopffgarten and her husband Dietrich von Hopffgarten, who died in February, 2006.
[2] The von Hopffgartens were both well-known dressage riders, trainers and coaches. They took the plaintiff, Jesse Sabey, under their wings. He spent a good deal of time living and working on the farm. Both of the von Hopffgartens executed codicils to their wills changing the gift of the farm from Ms. Rommel to the plaintiff. However, the codicils were only witnessed by one person, and hence were invalid because the Wills Act, R.S.B.C. 1996, c. 489, requires two witnesses to a testator’s signature.
[3] Ms. von Hopffgarten also had a U.S. will in which she left Mr. Sabey $100,000.
[4] Mr. Sabey’s primary claim is founded on proprietary estoppel, based for the most part on statements made to him by the von Hopffgartens. He claims alternatively in unjust enrichment and trust.
The evidence was clear the plaintiff relied on promises by the deceased Defendant VonHopffgartens that he farm would be his and he did a 37 hour week of labour on all horse farm related duties such as cleaning, repairing, planting and maintaining the horse farm for a period of 5 years and part time duties for another 5 years.
[23] The three explicit statements made by Dietrich said to be about future ownership of the farm are:
a) In 2003, Jesse was clearing blackberry bushes with Dietrich and Dietrich said words to the effect of, “Jesse, some day when you have this farm you’ll appreciate this.”
b) Also in 2003, when Jesse was changing a tire on the mower, Dietrich said words to the effect of, “Good job mowing the lawn, everything looks good, I’m glad you’re learning this, and you’ll appreciate this when this is yours some day.” This was said in the presence of Kim.
c) After a 2003 visit from another of Dietrich’s favourite students, Jeremy Steinberg, Jesse expressed to Dietrich his frustration that while Jeremy was pursuing the dream of a competitive dressage career, Jesse was digging ditches on the farm. Dietrich told him that “the farm was staying in the family and I would be able to ride for as long as I wanted to. That I was – it was mine. I was going to be there. Not to worry, Jesse.”
C. Events after Dietrich’s death in February 2006
[27] Six days after his death, Jesse went to the farm and met Kim. They sat at the table in her house and had a discussion. This is a key conversation because it is the only statement Kim made that Jesse relies on to found his proprietary estoppel claim. Jesse’s evidence was:
I remember it very vividly because in Kim and Dietrich’s kitchen there’s their table and there was the head of the table where Dietrich always sat and Kim sat on this side by the window, and then I would always sit on this side in a chair, and this was very different now because Kim took Dietrich’s spot and sat at the head of the table. So that was very odd to see. Anyway, yeah, she just — she said then — she just said, you know, Jesse, it was always Dietrich and I’s plan that if anything ever happened to Dietrich and I, that this place would be yours, that this place is yours. And she said obviously I’m still here, but I’d like to ask you to come back now, and if you want to go professional and train out of this barn, you can. If you want to just have your horse here and then have a day job, you can. But I’m asking you to come back and to take this now.
[38] The credibility of Jesse has not been challenged. He made no attempt to overstate his evidence. Several independent witnesses supported what he said about the work he did on the farm and his close relationship to Kim and Dietrich.
Law
Therefore the courts have normally looked to three main elements as a foundation for a proprietary estoppel claim: a representation made to the claimant; reasonable reliance on the representation; and a detriment to the claimant flowing from the reliance.
Thorner v. Major, [2009] UKHL 18 per Lord Walker at para. 29
Suggitt v. Suggitt, [2012] EWCA Civ 1140 at para. 19
[44] At para. 47 of Sykes, Finch C.J. said this of detrimental reliance:
While detrimental reliance is sometimes identified as a necessary element, it is perhaps better to consider it as part of the question of unconscionability. In the absence of detrimental reliance it would rarely, if ever, be unconscionable to insist on strict legal rights: see
Harpum, Bridge and Dixon, Megarry & Wade: The Law of Real Property, 7th ed. (London: Sweet & Maxwell, 2008) at 711.
[53] There are two issues that are wrapped up in reliance. The first is whether Jesse took the words of Dietrich and Kim as an assurance that he would be given the farm. If that is the case, then the second issue is whether his interpretation was reasonable. (I refer to the latter issue as one of fact because this is how Lord Neuberger in Thorner v. Major characterised it at para. 82.)
The court found the statements by both of the older couple coupled with their written although improperly executed codicils to their wills were sufficient to create proprietary estoppel in favour of the Plaintiff and he received the entire horse farm and the Defendant Rommel who had received the farm in the Will got nothing.
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