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Even If There’s Not A Will There Can Still Be A Way

Without question, the best way to ensure that your estate gets distributed in accordance with your wishes is to create a Will during your lifetime. A validly executed Will can reduce the circumstances in which disputes can arise between family members of the deceased over rightful ownership to property.

Of course, people regularly die without making Wills and the deceased's property is then distributed in accordance with the intestacy rules. These contain a list of priority for categories of family members and specify which surviving relatives will inherit and what they will receive. These distributions are often inadequate and in many cases will not give effect to the intentions of the deceased. For this reason, disputes as to the entitlement of the deceased's property can arise after operation of the intestacy rules because injustices can arise.

The equitable remedy of proprietory estoppel can however, save the day by giving effect to the deceased's intention in certain circumstances. The requirements are that the deceased has made a promise to give specific property to someone and that person has relied on that promise to their detriment by suffering some tangible loss. This doctrine featured in the recent case of Thorner v Major [2009] 1 WLR 776 (HL)and expanded its operation so it may be able to come to the rescue in more situations than ever before.

In the case, the Claimant David had performed full time unpaid work on his father's cousin's farm for almost 30 years. The owner, Peter, died leaving no Will and his estate was distributed in accordance with the intestacy rules and his property passed to his more immediate family, leaving David with nothing.

David claimed that from 1985, Peter had led him to believe that he would inherit the farm if he continued to work there. No specific assurances were given but Peter had by his words and conduct raised an expectation that David would inherit and David had relied on Peter's conduct by passing up other opportunities of work that would have given him much more income.

The judges in the House of Lords looked at the whole context of the relationship the two men had and found in favour of David, granting him the whole farm and stock despite the lack of specific assurances given to David that he would definitely inherit. David could prove that he had made serious sacrifices in the hope of inheriting the farm even though he could only point to a couple of specific instances where Peter had indicated his intentions through his conduct.

Having to prove your entitlement to property in this way could cost tens, if not hundreds of thousands of pounds in legal costs. There is the added risk that if you lose the case you have to foot the legal bill of your opponents on top of your own. It makes the cost of a £150 Will seem even more reasonable!

Encourage your relatives to get Wills if they have not already because it saves many problems from arising after death.

If you would like to come in to have a Will drafted please contact Jenny Pierce on 0117 9292811 or email jenny.pierce@wards.uk.com. If you believe that you have an entitlement to property but you did not receive it under the intestacy rules or Will of the deceased please contact Elizabeth Fry on 0117 9292811 or emailelizabeth.fry@wards.uk.com.