Probate disputes: I haven't received what I am due – what can I do?

Damian Collins

THE recent Supreme Court judgment in Guest and another v Guest (2022) shone a light on the equitable doctrine of proprietary estoppel.

Proprietary estoppel provides a remedy for a claimant who has not realised property that they believe they are entitled to, due to the words and conduct of the owner of that property.

There are three essential elements, all of which must exist, for proprietary estoppel to be established:

A: There must have been a representation made to the claimant, by the property owner, that ownership of that property will pass to them;

B: The claimant must have acted in reliance of that representation;

C: They must have acted to their detriment.

A claim for proprietary estoppel does not have to be made on death and indeed in Guest, the claimant son of the property owners issued proceedings when he realised that his parents had changed their wills, to his exclusion. Most claims do however arise from death.

Another common way to seek suitable provision is to make an application pursuant to the Inheritance (Provision for Family and Dependants)(NI) Order 1979.

The 1979 Order identifies a pool of potential claimants, who may make an application if they believe that reasonable provision has not been made for them in the will or intestacy of the Deceased. A spouse of the Deceased will be treated to a different standard than the other categories, but all claimants must prove that financial provision has been insufficient.

The Courts have generally applied quite a wide interpretation to what is meant by “reasonable financial provision.”

In Ilott -v- Blue Cross (2017), the Supreme Court affirmed the High Court Judge's award to the adult daughter of the Deceased, who had been estranged from her mother for many years. Claims will be very much judged on their individual merits.

In this jurisdiction, most people do not have a will. The rules of intestacy, which determine how an estate will be distributed when no will exists, are enshrined in the Administration of Estates (NI) Order 1955. Whilst there have been some amendments to this legislation, still no provision has been made for the likes of co-habiting partners or stepchildren.

As society moves away from what is viewed as the traditional family model, disputed estate claims are only set to rise. To help prevent a challenge, it is important to have your affairs in order - principally by putting a suitable will in place, having given to consideration to:

A: Have you promised anyone that they will benefit from your estate?

B: Who will be financially impacted by your death?

It is crucial that your will is accompanied by a careful note outlining the reasons and rationale for excluding someone who may expect to be named in your will but isn't.

:: Damian Collins is an associate solicitor at McCartan Turkington Breen Solicitors specialising in contentious probate.