Probate law

By David Burrows, David Burrows, Bristol

ReliefCampbell v Griffin, Laverick, Bennett and West Sussex County Council LTL June 28 2001Practitioners will remember that in the case of Gillett v Holt [2000] 2 All ER 289, the Court of Appeal emphasised that in a case of proprietary estoppel equity will intervene to prevent unconscionable conduct where a person has relied on a representation and suffered detriment as a result.In Campbell v Griffin, Laverick, Bennett and West Sussex County Council, the Court of Appeal applied the principles set out in Gillett to find that the claimant was entitled to relief.C claimed a proprietary interest in a property which he had moved into as a lodger in 1978.

It was owned as beneficial joint tenants by the Ascoughs who, at that time, were fit and healthy.Over the years their physical and mental abilities declined substantially and he assumed the role of an unpaid live-in carer until they went into permanent residential care in 1994.C said that after 1987 the Ascoughs repeatedly assured him that he would have a home for life.

He had initially paid 10 a week for board and lodging but stopped doing so in 1992.

He incurred out-of-pocket expenses of 1,700 on behalf of the Ascoughs.After the deaths of the Ascoughs, the executors sought to sell the property.

C resisted the sale on the basis that he had a proprietary right to occupy it for life.

The council contended that even if he had such an interest, it would rank after its registered charge for the cost of the Ascoughs' residential care.At first instance the trial judge held that C had proved neither detriment nor reliance since in his view C had acted 'out of friendship and a sense of responsibility'.The Court of Appeal disagreed.

A live-in carer looking after a couple as frail as the Ascoughs would expect a substantial wage in addition to free board and lodging.

From 1990 C was clearly suffering detriment.

There was a presumption of reliance from which C could benefit.

He had clearly been doing far more than could reasonably have been expected of the friendliest lodger.However, the grant of a full life interest would be disproportionate.

C would be awarded 35,000 from the proceeds of sale of the property.The Insolvency Act 2000, section 12 is well worth a look.

It reverses the effect of Re Palmer [1994] 2 All ER 812 to make the unsevered share of a deceased beneficial joint tenant available to creditors where the estate is insolvent.

The section came into force on 4 April 2001.

It applies where the insolvency petition against the estate is presented after the commencement of the section and within the period of five years beginning with the day on which the joint tenant died.The trustee has to apply to court for an order that the surviving joint tenant(s) pay an amount not exceeding the loss to the estate.

The court will have regard to all the circumstances when deciding whether or not to make an order, but in the absence of exceptional circumstances the court is to assume that the interests of creditors outweigh all other considerations.