Pre-death promises and gifts

Such a claim can arise where the person (donor), without meeting the requirement’s set out in the Wills Act 1837, to make a will, makes a gift which will only take on their death. At the time of death, the gift does not pass to the person representatives of the estate but to the person intended to receive the gift (donee), provided that:

• The gift is made in contemplation of the donor’s impending death
• The gift must be conditional on the donor dying
• The gift must be parted with or delivered to the donee

A Proprietary estoppel claim can arise where the owner of a property causes another to act to their detriment following a promise, or a belief, that they will obtain an interest in the property of their estate.

The court has is ability to intervene in cases where it finds that it would be ‘unconscionable’ for the property owner, or the estate, not to give effect to the promise given.

A promise given by a property owner is not, by itself, sufficient to establish a claim. To bring a claim, the claimant but establish the following elements:

Assurance: That property owner encourages, represents, promises or allows the claimant to believe that the claimant will have a right or benefit over the property.

Reliance: That they relied on the assurance.

Detriment:That they have suffered and acted to their detriment because of the assurance which was relied upon.