Entering a copy will into probate & another proprietory estoppel claim

The factual background

William Alan Dawson (“William”) died on 10 December 1994.  He had married his wife, Jo in February 1953 and they had four children, three daughters, Ann, Vicky and Liz (who were the defendants to the proceedings) and a son, Philip, who was one of the claimants to the proceedings along with his mother.

William and Jo both came from farming families and they established a farming partnership together starting off in a modest way with some 20 acres that William’s father had given to them which they operated as a dairy farm.  Over the years they acquired more land including in the early 1960s a field known within the proceedings as “the 16 Acre Field”.  By the time of William’s death the farm had grown to some 800 acres.  The nature of the farm had also changed and was by then being run as an arable farm.

From the late 1980s Philip became closely involved in the farm and although he was not a formal partner of the business, he was a co-signatory on the farm accounts and appeared to all intents and purposes to be treated as an equal partner.

Ann lived at the farm until approximately 1970 when shortly after her 16^th birthday she left home.  Although she did return to the farm for a brief period she moved away from the area and made her own life away from the family and the farm.

Vicky lived on the farm more or less continuously until approximately 1981 when then aged 21 or 22 she left the farm and opened a flower shop with the help of a bank loan guaranteed by her parents.  At this point she also married her husband, Keith and they have lived together ever since.  When she was 17 or 18 she had a child of her own, Christopher.  He was brought up by William and Jo until he became an adult.

Liz lived on the farm until she was 18 when she left to get married but she then returned to the farm when her marriage broke down and continued to reside there until she was about 23 or 24.

The claim

Jo and Philip issued a claim at the beginning of December 2019 seeking an order that the contents of a copy of William’s purported will dated 27 February 2989 be entered into probate, contending that the will had been validly executed by William, drawn up by a solicitor and mirrored the format of Jo’s will.  They stated that the original had been kept in a locked suitcase at William’s home and retained until sometime after his death on 10 December 1994.  Thereafter, they said it was handed over to a solicitor, Mr Victor Oddie and was subsequently lost.  However, the solicitors who originally drafted the will, Tracey Barlow Furniss & Co had retained a copy of the executed document and they therefore sought probate of the copy document in the absence of the original.

Ann, Vicky and Liz did not accept the will was a valid will and as the original could not be found they relied on the presumption of law that it was destroyed animo revocandi, i.e. intentionally revoked.

Another allegation regarding the question of whether or not William had known and approved the contents of his will was withdrawn at trial but they also filed a counterclaim seeking a declaration that immediately before his death William held a parcel of land (the so-called 16 Acre Field) upon trust for himself and Jo for their lives and thereafter on trust for them in equal shares.  The counterclaim was founded on the basis of a proprietory estoppel claim said to arise from certain representations made by William in the presence of Jo and Philip over a period of many years.  It was, said the daughters, in these circumstances that they had each worked on the farm.

In Ann’s case she alleged that she had worked on the farm, for no pay, for some 10 years between 1960 and 1970 when she was aged between 6 and 16 years.  In Vicky’s case, she claimed to have spent some 25 years (including a period of time after she had left the farm and married Keith) working on the farm for no pay.  Liz said she worked on the farm for no pay between the ages of 5 and 18 and then again following the breakdown of her marriage between the ages of 19 to 24 and 30 to 35.  All three daughters contended that they had relied upon the representation made by their father and that they had suffered detriment as a result.

Jo and Philip denied that any representation had ever been made by William as regards the 16 Acre Field.  They accepted that the defendants had all done some limited work on the farm but said that they did no more than any family members would do when being brought up within a farming family.  They also denied that the defendants had suffered any detriment, whether financial or otherwise and that they had acted in any way in reliance on an expectation of receiving any benefit.

The legal framework – prove the will into probate

In order to enter the will into probate the court needed to be satisfied as to the validity of the will.

Section 20 of the Wills Act 1837 provides that “no will or codicil, or any part thereof, shall be revoked otherwise than … by the burning, tearing or otherwise destroying the same by the testator … with the intention of revoking the same.”

Where an original will is not available, a copy may be admitted into probate in accordance with the provisions of Rule 54 of the Non-Contentious Probate Rules 1987.  An application is issued which must be supported by evidence as to the will’s existence after the testator’s death or, where there is no such evidence, the facts on which the applicant relies to rebut the presumption that the will had been revoked by destruction.

The court’s findings in relation to the will

The court heard evidence from Jo as to the circumstances surrounding the execution by William of his will and subsequently, how it became lost.  In this respect, Jo said that she met Mr Oddie from Richmonds solicitors at William’s funeral when she showed him a copy of the will which was still in the locked suitcase.  Subsequently, he attended a meeting with Jo at the farm, at the conclusion of which he was given various papers including the original will which he placed in his briefcase and then left.

Jo went on to say that she did not consider there was any point in obtaining a grant of probate since she was a partner in the farm business and her and Philip were both signatories to the farm’s bank account and so did not feel anything to change; indeed, she did not want it to as she found it too upsetting to remove her husband’s name.  From time to time she said she received reminders from Richmonds about the estate but did not take the matter any further.  It appears that at some point Richmonds were taken over and the successor firm was intervened in by the Law Society.  However, it had not been possible to trace the original will.

Having regard to Jo’s evidence, the Deputy Master found that he was satisfied that a will in the form of the copy will had been executed by William.  The will was regular on its face and appeared to have been validly attested which raised a presumption of due execution.

He went on to find that he found nothing in the loss of the original will to excite suspicion.  He accepted Jo’s evidence that the will remained in the locked suitcase until it was handed to Mr Oddie.  The loss of the original, said the Deputy Master, was entirely explicable given the subsequent changes that took place in Mr Oddie’s and the successor firm.

Given that the will remained in William’s possession, in unrevoked form as at the date of his death, the presumption relied on by the daughters did not apply.

The terms of the will are not surprising and there is no real suggestion in the evidence that there would be any reason for William to revoke his will which was only made five years before his death.  The copy will had been provided by the firm whose solicitor drafted and attested the will and there could be no doubt that the copy was a genuine copy of the validly executed will.

The legal framework – the proprietory estoppel counterclaim

The necessary ingredients for a proprietory estoppel claim are:

• An assurance or representation of sufficient clarity;
• Reliance by the applicant on that assurance or representation; and
• Detriment to the applicant in consequence of his reasonable reliance.

There must be a causal link between the assurance relied on and the detriment asserted, judged at the moment when the person who has given the assurance seeks to go back on it.

The question to be determined is whether (and if so, to what extent) it would be unjust or inequitable to allow the person who has given the assurance to go back on it.  The essential test is that of unconscionability.

The court’s findings in relation to the proprietory estoppel claim

The Deputy Master concluded that no representation was made in relation to the 16 Acre Field by William to any of his daughters, either individually or collectively, whether privately or in front of other family members.  In reaching this conclusion, the court had regard to the following facts:

• the daughters’ evidence as regards representations was vague;
• their evidence was identical with none of them providing the court with their own independent account of the representations they said were made;
• there were no independent witnesses to these conversations which were said to have been regular occurrences;
• they did not seek to promote any claim until Jo and Philip sought to prove the will;
• such a promise would have necessitated splitting the 16 Acre Field from the rest of the farm at some point in the future – for a father who intended (and which was not in dispute) for his son to have the whole of the farm and the farming business to have given a single field in the middle of the farm to his daughters was entirely illogical and improbable;
• it was very unlikely William would have made any promises about the 16 Acre Field without discussing it with Jo; and
• that William giving instructions, together with Jo, for a planning application in relation to the 16 Acre Field was not consistent with a promise that it would belong to his daughters at some point in the future.

The Deputy Master went on to find that even if a representation had been proven, the daughters had not relied on the same.  He found that any tasks the daughters did carry out on the farm were done (a) because they wanted to help their father, (b) because they did not dare to say no to their mother and, (c) because they had no real choice since they were wholly dependent on their parents for their bed and board.  They certainly did not do anything in reliance on a promise of the 16 Acre Field.

Lastly, as regards the question of detriment, the Deputy Master found that the daughters could not establish detriment finding that it simply could not be the case that three daughters who have, for some decades, lived away from the family farm, having taken the many and varied opportunities that came their way and, in Ann and Vicky’s case, having chosen to move abroad, could be said to have foregone career opportunities on the basis of the alleged representations.  They did not position their lives on the basis of inheriting the 16 Acre Field.

Conclusion

Having regard to the evidence and the findings that the Deputy Master made he concluded that Jo and Philip were entitled to a grant of probate of the will in the form of the copy will submitted in evidence and he made an order to that effect.  He also made an order dismissing the counterclaim.

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