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Testamentary promises
Published online by Cambridge University Press: 02 January 2018
Extract
This article deals with what must be a common domestic scenario. It concerns the entitlement, if any, of a claimant (C) to the property of a deceased person (D) where D, during his lifetime, had promised C that he (C) would obtain certain property on D’s death, but where, on D’s death, C is not able to establish either a valid will in his favour or entitlement under the intestacy laws.
Of course if C simply relies on a a gratuitous promise by D without any more, then any claim will fail. The promise is not an enforceable contract, or a perfect gift or an effective testamentary disposition, but there are circumstances where C could obtain aremedy foundedonsuch apromise.
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- Copyright © Society of Legal Scholars 1988
References
1. For a detailed analysis of the legal rules and principles in the circumstances where C is D's child and has moved in with D see Susan Burridge; ‘A Metric Measurement of the Chancellor's Foot’ (1982) 41 Camb LJ 290.
2. Page 14.
3. The Making and Revocation of Wills (Cmnd, 7902, 1980).
4. Ibid para 2, p 3.
5. See for example Re Colling (1972) 1 WLR 1440.
6. ‘The Making and Revocation of Wills’ [1980) Conv 64 at 74. For a detailed examination of such a proposal see J. H. Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88 Harv LR 489 and J. G. Miller, ‘Substantial Compliance and the Execution of Wills’ (1987) 36 JCLQ 559. See also Consultative Memorandum No 70 (1986) of the Scottish Law Commission, ‘The Making and Revocation of Wills’ and the Report on the Making and Revocation of Wills of the Law Reform Commission of British Columbia (1981).
7. See generally Mellows; The Law of Succession (4th edn) Ch 3, pp 8–11; Parry & Clerk, The Law of Succession (8th edn); J. G. Miller, The Machinery of Succession Ch 11; W. A. Lee, ‘Contracts to Make Wills’ (1971)87 LQR 358; J. G. Miller, ‘Provision for Dependents and Agreements for Testamentary Provision’ (1978) NLJ 449.
8. Hammersley v De Biel (1845) 12 Ch & F 45.
9. [1960) 1 WLR286.
10. Ibid, p 291.
11. [1919) 2 KB 571.
12. [1958) 1 Ch 168 See also National Provincial Bank Ltd v Moore (1967) 111 Sol Jo 357 where Cross J found a contract to make a will when a woman moved into her aged parents' house following an oral promise by her father that if she and her husband would move in and look after the parents until they died ‘You need never leave here and the bungalow will be yours.’ However the contract was held to be unenforceable because of the statutory bar in s 40(1) Law of Property Act 1925. (On this point see (1968) Conv (NS) 384.).
13. [1968) I WLR 1175, (1968) 2 All ER 783. See also Kingswood Estate Co v Anderson (1963) 2 QB 169. Cf Maddison v Alderson (1883) 8 App Cas 467, HL where the promisee remained in the service of the promisor as housekeeper without wages for many years and gave up other prospects of establishment in life in reliance on a promise of testamentary reward. The House of Lords doubted, whether there was a contract.
14. Section 40, Law of Property Act 1925 and Maddison v Alderson, supra. For the details see Megarry & Wade, The Law of Real Property (5th edn) p 587 et seq.
15. Maddison v Alderson (1883) 8 App Cas 467 at 479, per Lord Selborne LC.
16. [1976) AC 536, HL.
17. Ibid p 541, per Lord Reid.
18. [1979) Ch 16.
19. But see (M. P. Thompson) [1979) Conv 402 for a criticism of Walton J's approach.
20. [1934) 3 WWR 351 (British Columbia Supreme Court).
21. [1954) 3 DLR 785 (Supreme Court of Canada).
22. Applying Maddison v Alderson, supra. For a successful claim based on an oral contract supported by acts of part performance see Thompson v Guaranty, Trust Co of Canada (1973) 39 DLR (3rd) 408.
23. (1963) 38 DLR (2nd) 463. See also Re McIver (1941) 3 WWR 849 (BCSC). Also Hink v Lhenen (1974) 52 DLR (3rd) 301 where the value of the benefits obtained by the claimant from the arrangement were offset against the quantum meruit claim.
24. (1968) 66 DLR (2nd) 447.
25. See Brian Coote ‘Testamentary Promises Jurisdiction in New Zealand’ in A.G. Davis Essays in Law (ed J. F. Northey) Butterworths (1965).
26. Section (1).
27. [1962) NZLR 363.
28. Ibid p 374/5. See also Gartery and Others v Smith and Others (1951) NZLR 108 where children who had worked for their father for no wages were able to recover under the Act.
29. (1974) 52 DLR (3rd) 301.
30. (1979) 6 Estates and Trusts Reports (ETR) 88 (Nova Scotia Supreme Court).
31. See Pettitt v Pettitt (1970) AC 777, HL; and Gissing v Gissing (1971) AC 886, HL.
32. [1975) 3 All ER 768, CA.
33. [1986) Ch 638, CA.
34. Ibid p 648.
35. Ibid p 655.
36. [1987) 1 All ER 405: a decision of Edward Nugee QC sitting as a Deputy High Court Judge.
37. Ibid p 407.
38. Ibid p 143.
39. (1866) LR 1 HL 129.
40. Ibid p 142.
41. Ibid p 168.
42. Ibid p 170.
43. [1982) QB 133.
44. Ibid p 151.
45. [1976) Ch 179. For a criticism of the Court of Appeal deciding this case on estoppel rather than contract principles see P. S. Atiyah (1976) 92 LQR 174, and for a rebuttal see P. J. Millett (1976) 92 LQR p 342. For a fuller exposition of Professors Atiyah's view that proprietary estoppel cases are really cases of contract, see Consideration in Contracts - A Fundamental Restatement (1971) and ‘Contracts Promises and The Law of Obligations’ (1978) 94 LQR 193.
46. [1965) 2 QB 29.
47. [1967) 2 QB 329.
48. [1976) QB 255, C.A.
49. Ibid, p 241.
50. (1880) 15 ChD 96.
51. Ibid p 105.
52. See also Greasley v Cooke (1980) 3 All ER 710. For a criticism see M. P. Thompson (1981) Sol Jo 539.
53. Loc cit, p 410.
54. Ibid p415.
55. (1985) Times, 11 December, (1986) 16 Fam Law 212.
56. See Eves v Eves, supra and Grant v Edwards, supra. It is not clear why Edward Nugee QC confines his overlap to those cases where the belief is that the promisee is going to be given a right in the future, thereby excluding those cases where the owner has represented that the promisee has an existing right.
57. [1971) AC 886.
58. [1986) Ch 638 of 656.
59. [1976) Ch 179 at 199. See also Plimmer v Mayor, etc of Wellington (1884) 9 App Cas 699.
60. [1979) 2 All ER 945.
61. Ibid, p 950.
62. Loc cit, p 415.
63. Ibid, p 410.
64. [1981) 2 All ER 1018.
65. Indeed in Pascoe v Turner the judge at first instance had found a constructive trust but the Court of Appeal disagreed. Cumming-Bruce LJ said that ‘The cases relied on by the plaintiff are relevant for the purposes of showing that the judge fell into error in deciding that on the facts a constructive trust could be inferred. They are the cases which deal with the intentions of the parties when a house is acquired.’ (1979) 2 All ER 945 at 949. Contrast the application of Eves v Eves to a right to occupy a house promised in return for domestic services by a cohabitant in the Australian case of Ogilvie v Ryan (1976) 2 NSWLR 504. See also Marcia A. Neave ‘The Constructive Trust as a Remedial Device’ (1977-78) 11 Melbourne University Law Review 343.
66. See the judgments of Nourse and Mustill LJJ. The illusory nature of the ‘common intention’ in such cases has led one writer to agree with Brown-Wilkinson VC (in Grant v Edwards) that such cases are better dealt with on the basis of proprietary estoppel which permits a more flexible remedy and removes the need for the conduct in question to be referable to the acquisition or improvement of the promisor's property: John Eekelaar (1987) Conv 93 (but note the objections to a remedy of proprietary estoppel where the conduct is unrelated to expenditure on the property which are voiced by Mark Thompson at (1981) 125 Sol Jo 539 and the observations thereon of Sir Christopher Slade in his Child & Co Lecture (1984) ‘The Informal Creation of Interests in Land.’ For further criticism of the constructive trust solution see J. D. Davies ‘Informal Arrangements Affecting Land’ (1979) 8 Sydney Law Review 578.
67. See, eg, Unit Joint Stock Mutual Banking Association v King (1858) 25 Beav 72.