Wills Signing

Promises, Promises

Feb 10, 2015

In the recent case of Lothian –v- Dixon, the Court confirmed that it will retain a flexible approach in considering whether a promise made by a person during their lifetime can be enforced after their death, despite what may be written in that person’s Will.

In this case, Helen MacArthur was the proprietor of a hotel in Scarborough. She made a Will in 1983 splitting her residuary estate equally between her two cousins, Mrs Lothian and Mrs Webb. Miss MacArthur’s estate was worth just over £1 million.

In September 2010, Miss MacArthur asked Mrs Lothian whether she would come and stay at the hotel on a full-time basis to help manage and run the hotel. The request was made because Miss MacArthur had been diagnosed with terminal cancer. The request by Miss MacArthur was made together with an offer that, if Mrs Lothian agreed to help in that way, that Miss MacArthur would leave Mrs Lothian her entire estate.

Mrs Lothian accepted the proposal, and with assistance from her husband, spent the majority of a period of two years at the hotel doing whatever was required to keep it running and to support her cousin, Miss MacArthur.

Despite giving preliminary instructions to her solicitor to draft a new Will to leave her residuary estate to Mrs Lothian, unfortunately Miss MacArthur was not able to execute her Will before she died. As the Will was not executed, it was not legally enforceable, leaving the 1983 Will as Miss MacArthur’s Last Will and Testament, splitting the estate between Mrs Lothian and Mrs Webb.

Mrs Lothian made a claim seeking to enforce the terms of the promise made by Miss MacArthur, that she would leave her the entire estate.

The enforcement of such promises in law is based on the doctrine of proprietary estoppel. For a successful claim based on proprietary estoppel, it must be shown that there was a clear assurance made by the individual to the recipient, which the recipient then relied on to his or her detriment.

In this particular case, the Court had to decide whether or not the detriment that Mrs Lothian said she and her husband suffered, was enough to satisfy the doctrine of proprietary estoppel. Mrs Webb argued that any detriment that Mr and Mrs Lothian suffered was cancelled out by the benefits they received in the form of free board and lodging, whilst they stayed at the hotel.

The Court gave Judgment to Mrs Lothian ordering that, after payment of specific legacies under the 1983 Will, the residuary estate should be given over to her, entirely. In reaching that conclusion, the Court held that detriment was not a narrow or technical concept, and had to be judged in the round. The Court accepted previously established case law which states that detriment need not be financial expenditure, but must be substantial. The Judge felt that it would be unconscionable to deny Mrs Lothian what was promised, as the detriment was indeed substantial in that Mr and Mrs Lothian had almost entirely altered their lifestyle in order to help Miss MacArthur during the last years of her life, which imposed upon them considerable emotional and physical strain and meant that Mrs Lothian was separated from her husband during that period as, quite reasonably, one or other of Mr and Mrs Lothian had to spend their time mostly looking after their own affairs, whilst the other looked after Miss MacArthur.

The decision in this case is likely to give some comfort to potential Claimants, as it demonstrates the Court’s preference in taking a flexible approach to considering what exactly constitutes “detriment”.

Should you require any further information regarding the content of this article, the enforcement of lifetime promises and Wills and probate disputes in general, please contact Daniel Winter on 01279 755777 or email

Daniel Winter

About the author

Daniel Winter

Daniel joined Nockolds in 2009 and is a Partner in our Commercial and Property Litigation Team. Daniel has been practising as a qualified Solicitor for ...

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