Categories
Property Law

Proprietary and Promissory Estoppel-A Useful Equitable Relief in Land Disputes

proprietary-estoppel

Land disputes in Ireland can be incredibly bitter and costly for all concerned. The relationship of Irish people with “the field”, and property generally, appears to be unique and we probably know families, neighbours, friends, and others who have been involved in a bitter dispute involving land or property.

Proprietary Estopppel

The equitable doctrine of proprietary estoppel is one that is regularly used by the Courts in dealing with these types of disputes.

To use proprietary estoppel to ask a Court to recognise that you have an equitable interest in a piece of property you will need to clear three main barriers:

  1. That a clear promise or representation was made to you in respect of the property. This could be a promise, for example, by a land owner to a nephew that “those 3 fields will be yours when I’m gone.” This clear promise must have led to an expectation or belief on your part that you would receive the land.

Clearly, if you have evidence (eg a witness) of this promise you will be in a much stronger position.

2. You must have acted to your detriment on the basis of this promise.

This could involve the spending of money on the property or the passing up of a career off farm or the working on a farm for free for years or the payment of bills or mortgage on behalf of your uncle or the suffering of some other detriment as a result of the promise.

It used to be the case that you would need to have shown the expenditure of money on the lands but as case law has evolved this is no longer an absolute requirement.

However it has been recognised by the Courts in cases like McCarron v McCarron (Supreme Court, 1997) that “it might be difficult to determine the extent of the estate or interest in land for which the plaintiff might qualify as a result of his personal efforts.”

3. That the detrimental acts performed by you were performed in reliance on the belief or expectation.

Equitable Doctrines

Equitable doctrines are concerned with “equity” or fairness. Therefore they are based upon righting a wrong where the conduct complained of is deemed by the Court to be “unconscionable”.

A Court has wide discretion as to how it will give effect to the “equity” which has arisen. This can range from ordering a transfer of the land to the person who claims the equitable interest to a simple negative right preventing the person from being ejected from the land by the registered legal owner.

Categories
Wills and Probate

Children’s Rights under the Succession Act, 1965

family-home-ireland

Unlike spouses, children are not entitled to any specific share in a deceased person’s estate.

Testate

Accordingly, in a testate situation, a child is only entitled to whatever the will of the deceased says.

Intestate

In an intestate situation a spouse is entitled to two thirds of the estate with the one third going to the ‘issue’. ‘Issue’, for the purposes of the Succession Act, 1965, includes marital and non-marital children, adopted children and their lineal descendants. Step children and foster children are not included.

Section 98 Children

It is worth noting the provisions of section 98 of the Succession Act, 1965. It provides that where a child predeceases a testator leaving issue at the time of death, the gift from the testator will not lapse but will take effect as if the death of that child occurred after the death of the testator, unless a contrary intention appears from the will.

This means that if a testator’s child predeceases him leaving grandchildren, any benefit that would have been received by the child will pass to his estate.

Actions that a Child Can Take Against an Estate

The first action to look at is a ‘section 117’ action. Section 117 of Succession Act, 1965 provides:

117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
    (2) The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.
    (3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.
    (4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.
    (5) The costs in the proceedings shall be at the discretion of the court.
    (6) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased’s estate.

 

The Court will consider the situation from the perspective of a prudent and fair parent and must consider the position of the other children of the testator also.

The time limit for bringing an action under section 117 is 6 months and this is a strict limit.

The critical test for success of a section 117 challenge is

  • whether the parent positively failed in his moral duty to make proper provision for the child and
  • the child must establish that he/she had a need which the testator could have satisfied in making his will.

A court cannot make an order which will interfere with the legal right share of the surviving spouse.

The second type of action is a ‘section 63’ action. Section 63 of the Succession Act, 1965 deals with advancements to children and allows a child to bring a case against a child who has previously received an advancement during the testator’s lifetime. This action will seek to have the previous advancement to a sibling taken into account in the distribution of the estate on death.

If this action is successful, it will clearly impact on the distribution of the estate.

Proprietary Estoppel

The third type of action that can be taken by a disappointed child is a proprietary estoppel action. A proprietary estoppel action will aim to prove that the child acted to his detriment in the belief that he would be given a right to the deceased’s property and the deceased knew and encouraged this belief.

This is a very difficult action to succeed with.

However, if it is successful and an equitable interest has been established, it will prevail over the legal right share of the spouse and the claims of other children sharing the estate, unlike a successful section 117 action.

Read spouses’ rights under Succession act, 1965 also.