It is not unusual for people to say things to others during their lifetime about what they want to happen to certain assets on their death. The Testator may have reached agreements with people during their lifetime which are then not reflected in their Wills, or which ought to have been implemented during their lifetime, but were not. Depending on the circumstances, this might give rise to a variety of issues, not only for those who feel unfairly treated, but also for executors and beneficiaries of the Deceased’s estate.
A successful claim would usually result in the Executors enforcing the Deceased’s promises or intentions by transferring the asset (or part of the asset) to the intended recipient. The effect of that would be to reduce the value of the estate and therefore beneficiaries’ entitlement and can also have tax implications.
Different types of Proprietary Claims
These claims usually fall under one of the following headings:
Proprietary Estoppel
A proprietary estoppel claim might arise when one person has acted to his/her detriment on the belief that he/she either has, or will have, a right over the assets of the Testator. The Testator may have made promises to the other party about such rights, or might simply have encouraged the other party’s belief that they would have a right over the Testator’s asset(s). These claims often concern promises by the Testator to another that they would have the testator’s house (for example) on their death.
Constructive Trusts
A constructive trust can often arise where both parties share a common intention that one of them should receive a later benefit as a result of acting to his own detriment. If it would be unconscionable for one party to deny the other’s interest in that asset, a constructive trust might be created. This type of claim often overlaps with proprietary estoppel claims.
Secret or Half Secret Trusts
A secret trust is where a Testator makes a gift in a Will, intending that the Trustee of that gift should pass it on to somebody else. For this type of trust to be valid, there are several requirements for the Testator and Trustee(s) to have met.
Deathbed gifts (also known as Donatio Mortis Causa)
A deathbed gift is made when an asset is given in contemplation of the donor’s impending death, the gift is conditional on the death of the donor and that there is a parting with dominion over the subject matter of the gift.
To find out more about any of the above trusts, claims or gifts, please do not hesitate to contact a member of our team.
