The second round table

We mention proprietary estoppel most years in legacy labyrinth and although charities are not frequently seen in the 'typical' cases, which often involve farming families, claims involving estoppel can be a significant threat to legacy income. A few words by a promisor, even if not on an identifiable date or dates, can create legally enforceable rights over property which may frustrate assets otherwise passing to charity.  

A reminder of the test

Hopefully this is not new to you but as a brief recap, proprietary estoppel is an equitable claim where the claimant asks the court for a remedy because it is unfair for promises made to them to be broken. The test has developed over time, and continues to do so, but there are three key elements:

1. Promise – either a representation, a promise (but not a contract) or the acquiescence of a mistaken belief.  The promise does not need to be identifiable on precise occasions, and only need be 'clear enough'; 
2. (Reasonable) Reliance – the claimant must have reasonably relied on the promise; and 
3. Detriment – that reasonable reliance must have caused some detriment to the claimant which makes it unconscionable for the promise to simply be rescinded
4. We have talked at length in the past about remedies where an estoppel is established.   For some years there was a debate as to whether the appropriate remedy was compensation for the detriment suffered or giving effect to the promise made.  It has been tolerably clear since the Supreme Court judgment in Guest v Guest in 2022, that there is in fact a sliding scale and the court will approach the question of the appropriate remedy flexibly having regard to the facts of the case and what is fair in the circumstances.

Cases this year 

Litigation is always uncertain but proprietary estoppel claims particularly so because of the fact sensitive nature of the claims.  Frequently the familial and informal nature of the conversations and events which give rise to these types of claims means the court is grappling with the test set our above based only or predominantly on witness evidence and with very little by way of contemporaneous documents.  

Despite the challenges and risks that creates, we have again seen a number of high profile estoppel cases this year:

• Maile v Maile [2025] EWHC 2494 (Ch) – a probate dispute where the deceased's grandsons alleged their grandmother had promised a family farm to them, a promise upon which they had relied to their detriment.  The nephews also alleged their grandmother lacked testamentary capacity, did not know or approve the contents of her wills and codicils and/or was unduly influenced by the will draftsman.  Judge Michael Green found against the claimants relatively swiftly in respect of the challenges to the validity of the wills.  

The proprietary estoppel claim was carefully considered with reference to the evidence given by witnesses at trial and the documents available, including detailed attendance notes prepared by the will draftsman.

The nephews' claim failed.  A considerable challenge was that their parents were still living (and of an age to reasonably inherit and work the farm) and so any statements made by their grandmother about having / working the farm did not easily translate into a promise that they would inherit directly on her death, but more likely that she wanted them to continue running the farm (which would pass equally to her daughters).   The nephews said they had entered into a partnership agreement on reliance on the promises.  In oral evidence, one of them however said he would likely have acted in the same way by entering into the partnership without the promises of inheritance because it had such a significant tax benefit (to whoever would inherit).    

The nephews did not change their behaviour nor stop the acts they pleaded as detriment when they found out their grandmother had changed her wishes in 2016.

Having failed to establish both of the first two elements, the court dealt only briefly with detriment. The nephews had received considerable countervailing benefits from those acts which they said were detrimental, eg free board and lodging.  They had in the same period when said to be working hard, for free, for the farm, managed to contribute over £90,000 in partnership capital to other ventures from which they benefitted.

• Scott v Scott [2025] EWHC 2796 (Ch) – a well reported claim involving Richard Scott – the so called 'Car Boot King'.  The particularly colourful facts of this case include that Richard had 19 children with several different partners, and had served custodial sentences, including for arson.  The core dispute related to the inheritance of a farm and claims were brought by one of Richard's sons, Adam, and his second wife, Jennifer.

Adam challenged Richard's last will on the grounds Richard lacked testamentary capacity and want of knowledge of approval.  He also alleged that he had suffered a 'whole life detriment' on the promise that his father would leave him the entire farm.

Adam's claims failed.  The Court found that the promises, to the extent they had been made, had in fact been fulfilled.  This included a promise in 1985 that Richard would 'set up' Adam in farming, which he had done by giving him various licenses and the ability to establish himself as a farmer.  Richard next promised in 1995 to give Adam rights to a tenancy and to purchase at probate value on death.  He made a will to that effect which was later revoked by new wills leaving his estate more equally between his family.  The Court found Adam did rely on those promises for 8 years, but then Richard told him he had changed his mind about leaving the core estate to Adam, yet Adam continued to work on the farm regardless.  The Court found that was because he had a good income and he loved farming.  The Court also dismissed the challenges to the validity of the will – perhaps not unsurprisingly preferring the evidence of an expert who had assessed Richard during his lifetime.

Jennifer's claims related to tenancies between Adam and Richard which she alleged were shams.  She failed to demonstrate that Richard and Adam shared an intention that the tenancies were to have some other effect that on their face.

• Grijns v Grijns [2025] EWHC 1413 (Ch) – main claim and EWHC 2853 (Ch) – costs

Andrew Grijns claimed an estoppel had arisen in his favour over a property in Chelsea, owed solely by his mother, Janice, since the death of her husband in 2019.   

Andrew had lived in the property since 1999 under an informal family arrangement.  He paid very low or no rent himself and received rent from letting out the basement.    Andrew claimed his parents had made various assurances that led him to believe he would inherit the entirety of the property, or a substantial interest in it.

Master Bowles dismissed the claim (as well as a related claim for trespass).   Andrew was not a compelling witness.   The judge noted 'the very poor quality and reliability of Andrew's evidence' and that there were 'serious inconsistencies' in what he said.  The judge found there were no assurances capable of giving rise to an estoppel, and that even if there had been (i) there was no detrimental reliance and (ii) even if that were different there was no unconscionability.  In particular the countervailing benefits to Andrew's occupation (ie rent well below market rate for a large property in Chelsea worth £3.85m plus receipt of the rent from the basement tenants) counted heavily against his claim for detriment

The Court found Andrew was a bare licensee.  

Andrew was ordered to (i) account for the net income from the basement tenant, (ii) pay his mother mesne profits from his time in occupation.  Andrew sought to argue costs should not follow the event, including because his mother had refused to mediate.  That found little favour with the Court who said Andrew's attempts to settle were unreasonable and not genuine.  He was ordered to pay his mother's costs on the indemnity basis.  

What do this year's cases tell us about the test?

Maile tells us that the promise by the testator needs to have a sense of permanence because testators are, of course, free to change their minds at any time.  Judge Michael Green said a promise needs to: 'very clear and to have a certain quality of immutability about it.  Unless the testator can appreciate that their representation is going to be relied upon by beneficiaries such that their lives would be shaped around their receipt of the promised inheritance, it cannot really be said to be unconscionable for the testator to change their mind later'.

Maile also reminds us that the tests are closely intertwined, because the weaker the representations or promises are, the less likely it would be reasonable for the claimants to rely on them.

Tensions on timing 

A claimant who knows or reasonably suspects the promises have been broken might well be criticised, as in Maile, if they sit back, particularly if they wait until the promisor has died.  Indeed, if that delay is long enough a claimant might even face a defence of laches which could defeat their claim altogether.

As in Scott, where a claimant actually knows promises have been broken, they cannot rely on detriment after that date. In fact, continuing detriment may well count against the claimant because the court may consider some other reason for that detriment – for example a fair income, other opportunities or perhaps love and loyalty to their family.

However, a claimant who acts promptly and chooses to bring their claim while the promisor is alive, if successful, invariably faces a significant discount on any remedy based on the principle of accelerated receipt (ie they should receive less now because their expected inheritance has come early).   

Claimants are therefore faced with the unhappy choice of bringing claims while the promisor is alive, knowing if they win they will face a potentially hefty discount against what was promised, or running the gauntlet of waiting until the promisor's death not knowing if unhelpful evidence arises in the interim, plus the risk of a laches defence.

Key takeaways

For charities who, if they are involved in a proprietary estoppel claim at all, will almost invariably be Defendants to these types of claims,  the focus on (i) delay; and (ii) continuing detriment after it is clear a promise has been broken, as reasons to dismiss claims will be welcome.

What is clear is that the court continues to approach these claims with a real focus on the facts and what is right in each individual case.

<< BACK TO HOMEPAGE