In Frears v Frears  EWCA Civ 1320, the Court of Appeal had to consider the equitable doctrine of election.
The effect of the doctrine is that if one person gives property to a beneficiary, and in the same instrument purports to dispose of property belonging to that beneficiary, the beneficiary must either allow his own property to pass under the terms of the will or use the testator’s property to compensate the disappointed party. He cannot accept the property given and keep his own as this would be inequitable.
The Court of Appeal found as a matter of fact that the claimant had a beneficial interest in one half of his parent’s house. The house had been held by his parents as beneficial joint tenants and, the father having died, the mother was the sole legal owner.
The mother’s will was not entirely clear. She made specific gifts of all her assets apart from her interest in the house and then bequeathed her residuary estate as to 50% to the claimant and as to 50% to the siblings. Was she purporting to dispose of the whole house, or merely her half interest in it?
The Court of Appeal held that this was a case of latent ambiguity and that extrinsic evidence was, therefore, admissible under section 21 of the Administration of Justice Act 1982. There was an attendance note from the solicitor who prepared the will, which clearly indicated that she was purporting to make a gift of the whole of the house – giving half to the clamant and the other half to be divided among the siblings.
The effect was that she had purported to give half the claimant’s share away and had given half of her own share to him. The Court of Appeal held that this was a case for election. Unfortunately for the claimant, whichever way he elected he would end up with half of the house. He could either: keep his own property and use the quarter coming from his mother to compensate his siblings; or take the quarter coming from his mother under the will and let half of his own share pass under the will to his siblings.
Proprietary estoppelIn Thorner v Major  UKHL 18, the House of Lords reversed the decision of the Court of Appeal and found in favour of the claimant, in the process allaying fears that the higher courts were trying to limit the extent of proprietary estoppel.
The deceased was a Somerset farmer from a farming family. He was described as a man of few words who hardly spoke in direct terms.
The claimant was a second cousin who worked exceptionally long hours on his father’s farm and on the deceased’s. Witnesses described him as giving a huge amount of help to the deceased over a period of 30 years and as ‘essential’ to the running of the deceased’s farm. He helped the deceased with his paperwork as well as with manual labour.
Witnesses commented on the fact that the deceased regarded himself as entitled to help from the claimant and expected him to do whatever was asked. The claimant received pocket money from his parents for the work he undertook and no payment at all from the deceased.
The deceased died intestate. He had made a will in 1997 making various pecuniary legacies and leaving the residue to the claimant, but he revoked it in 1998 after a disagreement with one of the pecuniary legatees and never made another.
Various comments were made by the deceased which led the claimant to hope that he might inherit the farm and in 1990, at a time when the claimant was considering a job opportunity, the deceased gave him a bonus notice saying ‘that’s for my death duties’.
At first instance (Thorner v Curtis  EWHC 2422), the judge found that the statements and conduct amounted to a representation that the claimant would inherit the farm and was a strong factor in his decision not to accept the offered job. There was further encouragement from the deceased’s behaviour in the following years.
The judge held that the deceased’s words and conduct were tantamount to assurances and the claimant had relied upon them to his detriment, doing huge amounts of unpaid work and turning down other opportunities.
After an extensive review of the case law in the area, the Court of Appeal reversed the decision (Thorner v Major  EWCA Civ 732).
Lord Justice Lloyd (who delivered the judgment of the court) said that while there is no special rule as to the form or nature of the promise, representation or assurance which is capable of providing the basis of a proprietary estoppel case as regards a claim against a deceased’s estate, there must be a clear and unequivocal representation, and that representation must be intended to be relied on, or at the very least it must be reasonably taken as intended to be relied on. In the present case, the deceased probably had intended the claimant to inherit and the claimant had understood this to be the case. However, that was not sufficient. The necessary elements for proprietary estoppel were not sufficiently established.
The House of Lords reversed the Court of Appeal’s decision. Lord Walker of Gestingthorpe said that to establish a proprietary estoppel, the relevant assurance had to be ‘clear enough’. What amounted to sufficient clarity depended on context. The Court of Appeal had not given sufficient weight to the advantage that the trial judge had had in seeing and hearing the witnesses. The evidence had demonstrated a continuing pattern of conduct by the deceased over a lengthy period.
It was irrelevant that the extent of the farm was liable to fluctuate as development opportunities arose and tenancies came and went. There was no reason to doubt that their common understanding had been that P’s assurance related to whatever the farm consisted of at P’s death.
The comments of the House of Lords in Yeoman’s Row Management Ltd v Cobbe  UKHL 55, where two experienced business people had entered into a ‘subject to contract’ arrangement, were not relevant in a family or domestic context.
Professor Lesley King, College of Law, London