Free will


Derek Inkpin from local solicitors Wiseman Lee looks at the problems of family disputes in relation to inheritance and wills and explains the importance of equity and mediation

What if your father who owns his farm says to you: “One day, all this will be yours,” but then years later, you fall out and your father changes his will to exclude you and leaves the farm to your brother? Can the law help you? Would your answer be any different if, based on the above promise, you worked on the farm for low wages for many years because you relied on that promise, and then have to leave the farm cottage you were given to find employment elsewhere?

Normally speaking, a promise is not enforceable unless it is made part of a contract. Another aspect is that we are free to change our will until death. However, if we act to our detriment by relying on a promise of inheritance and give up getting a better-paid job elsewhere to work on the farm, the verbal promise given to you earlier will likely be enforceable.

There is something called equity, which will put right an injustice where the law would not normally help. Equity will restrain the rigid application of legal rules where the outcome would be unconscionable and therefore unfair because you have been given a promise but later that promise to confer property on you is broken. 

The remedy which you ask the court to decide in your favour is called proprietary estoppel. This sounds rather quaint, but put simply, means a person cannot break a promise without the court stepping in to stop an unfair outcome. If this explanation seems an obvious result, what the courts continuously have to do is to resolve a clash of legal principles. For example, on the one hand, having the freedom to make a will of your choosing but having that will overturned because something was said many years before which contradicts the will.

Family disputes, of course, can get very complicated and expensive because the persons in dispute see their family relationship fall apart with the worry of how the dispute is to be paid for. Against that, the arguments both for and against raise really important principles which, understandably, people are not prepared to forgo.

One of the major changes in my working lifetime is the use of mediation. Instead, therefore, of listening to both parties’ barristers slugging it out in court with the huge legal costs normally being paid by the loser, there is much to be said for the appointment of an experienced mediator, who helps both sides at a fairly early stage make their own contributions to the process and, hopefully, an agreed outcome, with your lawyer to help you during the process.

Wiseman Lee is located at 9–13 Cambridge Park, Wanstead, E11 2PU. For more information, call 020 8215 1000

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