Proprietary estoppel and fraudulent calumny…..

Every industry and profession has its own technical terms, terminology and jargon. The Estate Planning profession is no different. And I shared with my networking group this week and last, my favourite two legal terms. The first is ‘proprietary estoppel’, and the second one from this morning is ‘fraudulent calumny’.

So, what are they?

Well, in law, an estoppel is a kind of promise. A proprietary estoppel then, is a verbal promise to someone that says on death they will inherit all, or most of the estate. I guess the example most people think of is the farmer standing with his son and says, “One day, my boy, all this will be yours”. In reality, of course, it is not that simple. In order to prove proprietary estoppel, 3 conditions need to be satisfied. 1) An Assurance. This can be express or implied that someone will have rights over property in a clear and unambiguous way. 2) A Reliance. Someone needs to show that through their actions they have relied on that assurance. 3) Detriment. Has someone acted to their own detriment as a result of 1) & 2)?

How might that look in real life? Imagine an elderly parent asks their child to become their full time carer, in exchange for inheriting the whole estate on the parent’s death. The child then gives up their full time job to look after their parent. In this example, we have an assurance (a promise). The child is relying on that assurance, and they have a detriment because they have given up an income and a career. Clearly these types of claims are difficult to prove because the main witness has already passed away. But such claims can be, and are, successful.

So what then, is ‘fraudulent calumny’? It is a category of claim brought in order to try to challenge the validity of a Will. It is a quite unusual and rare claim to bring, largely because of it’s difficulty to prove. But, in short, it is where someone’s mind has been poisoned causing that person to write or change their Will excluding X. Y drips, drips, drips about how awful X is and what a bad person they are, to such an extent that the will maker believes it to be true, then alters their Will to exclude X because they have been coerced or fed into believing so. So Y undermines the character of X falsely, in order that they then inherit all or the bulk of the estate.

As you can imagine, this is notoriously difficult to prove, but there have been a few successful cases over the years. These types of claims are incredibly heavily evidence based as there are unlikely to be any witnesses, and often rely on the nuances and on the family dynamics that exist within most families. And interestingly, fraudulent calumny can still happen when the will maker has full capacity.

So if you want to talk about proprietary estoppel, fraudulent calumny or any other type of Estate Planning, or Willwriting jargon, we would be delighted to discuss these with you for free, in the comfort of your own home, at a time that suits you.