Winter vs Winter - Will rejected on grounds of proprietary estoppel

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04 December, 2023

John Lambe

The England and Wales High Court have recently rejected a Will challenge based on alleged mutual Wills that they said had been made by their parents, instead allowing it on the alternative ground of proprietary estoppel.

Winter v Winter [2023] EWHC 2393 Ch concerns a claim where two brothers sought to challenge dispositions made by their late father's last Will. The principal asset in their late father's Estate was his share in the market garden business which the family had operated together for numerous years. The claimants argued that in 2000, their late mother and late father had mutual Wills in which the family business was to be split in three equal shares, one to each son. Their late mother passed away in 2001 and in 2015 their late father amended his Will leaving the entirety of his business shares and also the residue of his Estate to his third son, Philip. Nothing was left for the Claimants. The defendant, Philip, disputed that the 2000 Wills were mutual Wills, and argued that their father was free to change his Will as he wished.

In order to establish the existence of a mutual Will, there must be evidence available that the testators both agreed that their Wills would be irrevocable after the death of the first testator, establishing a contract. The claimants were unable to produce a copy of their late father's missing 2000 Will and there was no evidence to show that their parents intended their Wills to be irrevocable. The Court therefore rejected the contention that mutual Wills had been made. However, all was not lost for the claimants, who in the alternative, pleaded a proprietary estoppel claim on the grounds that their parents had assured them that they would receive an equal share of the family business if they committed their lives to working in it. The claimants argued that they had relied on these assurances to their detriment and should therefore receive an equal share in the business in any event.

Despite rejecting the mutual Wills challenge, the Court considered evidence provided by a number of various witnesses and came to the conclusion that the claimant's late parents did, on a number of occasions, tell others that their sons were working for them, and that the business was being built up for their future. The Court concluded that there was sufficient evidence to establish proprietary estoppel.

Proprietary estoppel can occur, for example, when a parent has promised a child, either verbally or by conduct, that they will inherit a business or a share in it and then states something different within their Will. The child may have acted upon this by working in the business for many years at a very low wage on the basis that one day it would be theirs. If the claimant can satisfy a court that a clear, unambiguous promise or assurance was made to them and that they relied on and acted upon that promise to their detriment, for example by rejected other career opportunities or investing time and/or money, their claim will succeed. The court has a wide discretion in the remedy they can order to satisfy a claim, and can order that the promise be fulfilled even if it is not in line with the detriment suffered by the claimant.

If you would like to speak to someone about claims in relation to mutual Wills or proprietary estoppel, please contact a member of the team on 0333 207 1130.

For more information contact John Lambe in our Contesting a Will department via email or phone on 01772 220 235. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Contesting a Will department here

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