Mrs Lothian was a cousin of the deceased. The deceased made a will in 1983 leaving her residuary estate half to Mrs Lothian and half to Mrs Lothian’s sister, Patricia Webb. The deceased had been close to both sisters but over the years had lost touch with Mrs Webb. The deceased’s main asset was a seaside hotel she had inherited from her parents.

It was described as a pleasant family hotel and was moderately successful, although the deceased had from time to time had to lend money to the company through which it was owned. The shares in the company were valued for probate at £584,766 and there were other assets valued at £457,980.

In September 2010 the deceased, knowing that she had inoperable terminal cancer, asked Mrs Lothian to come and stay at the hotel on a full-time basis to look after her during her final illness and help to run and manage the hotel up to her death. In return she said that she would leave Mr and Mrs Lothian her entire estate. She recognised that this would be a big upheaval as the couple lived in Scotland and Mr Lothian had a business there; she insisted that Mrs Lothian should consult her husband before agreeing. Shortly before her death she gave instructions to her solicitor for a new will leaving her entire estate to the claimants. Unfortunately, she died without having an opportunity to execute the will.

The judge accepted that for two years Mrs Lothian had spent at least nine months of each year at the hotel. She had supported her cousin through illness and acted as a general dogsbody at the hotel doing whatever was required. Mr Lothian visited at weekends and also performed general duties as required.

For a successful claim of proprietary estoppel the claimant must show:

  • an assurance;
  • relied on;
  • to the detriment of the promise.

The elements must be present to such a degree that it would be unconscionable not to grant relief. Even if the court agrees that relief is appropriate, the promisee will not necessarily get what was promised. The court will take into account the degree of detriment suffered and make an order which is proportionate.

Mrs Webb accepted that the deceased had made the promises and assurances as alleged, but did not accept that the claimants had acted to their detriment, arguing that they had received counterbalancing benefits in the form of free board and lodging and that they were merely entitled to an award of around £40,000 plus recoupment of travelling expenses.

Roger Kaye QC, sitting as a High Court judge, did not agree. Detriment is not a narrow or technical concept; it has to be judged in the round. The real detriment or harm from which the law seeks to give protection is that which would flow from the change in position if the assumption that led to it were deserted. It need not be expenditure but it must be substantial. See Gillett v Holt [2001] Ch 210.

Ultimately the question is whether, looked at in the round, in the circumstances that have happened, it would be unconscionable for the promise or assurance not to be kept even if there was not initially a legally binding agreement. See Thorner v Major [2009] UKHL 18.

The judge considered that the activities and support provided to the deceased amounted to substantial detriment. The claimants substantially altered their entire lifestyle in order to help her in her last two years. They knew the deceased’s illness was terminal, but they had no idea how long they might be called on to continue their support.

Mrs Webb submitted that they had countervailing benefits, which cancelled out the detriment. Although they were not paid for their time and trouble, they had free board and lodging whenever at the hotel. Members of their family also came and enjoyed the pleasant atmosphere and sea air. The judge did not regard these benefits for one moment as ‘any kind of meaningful compensation or countervailing benefit for the open-ended commitment they gave at the outset and to which they both adhered’.

It would, therefore, be unconscionable to grant no relief.

The next question was what form the relief should take. The deceased had promised the claimants the whole estate. By the time of her death they had already suffered considerable detriment. They had been compelled to live apart from each other for two years. Mrs Lothian had health problems: multiple sclerosis, dyslexia, eye problems and the need for a hip replacement that she had postponed in order to assist the deceased.

An award of £40,000 and travel expenses would have been insufficient. This was a case where it was appropriate to award them the entire net residuary estate after satisfying any legacies payable under the earlier will.  

Bradbury v Taylor

The facts and decision are similar to Bradbury v Taylor [2012] EWCA Civ 1208 where a young couple had uprooted themselves from Sheffield and moved to Cornwall to look after an elderly relative relying on a promise that he would leave them his house and land.

Counsel for the estate argued that no detriment had been suffered since the family lived rent free in a large house with extensive grounds. The trial judge held that the move itself amounted to detrimental reliance even though, as he recognised, there were substantial benefits for the family arising from the move. The Court of Appeal said that this was ‘not a conclusion which is open to challenge’. The defendants had also argued that an award of the house was disproportionate. Again the trial judge disagreed. There had been a promise of a specific item and the claimants had kept their side of the bargain.

This was a case where the expected benefit and the expected detriment were in a general and imprecise way equivalent, or at any rate not obviously disproportionate. The Court of Appeal held that the judge had carried out an appropriate evaluative exercise as regards the benefits and disadvantages, and as to how the couple would be placed if the representation were permitted to be resiled from. He had committed no error in carrying out this process, or in coming to the outcome that he did.

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