There have been many cases in which the Irish courts have been willing to find that equitable rights exist in a succession context, which overrides a will or intestacy will.
In the context of property, estoppel may be used to positively assert a right. In contrast, promissory estoppel generally works as a defence only.
See our separate chapters on equitable estoppel and constructive trusts in our section on trust. See also our section in contracts on promissory estoppel.
Property rights may arise in particular situations where equity grants remedies to do justice between the parties. This is far from a general jurisdiction allowing a court to transfer property on the basis of doing justice and avoiding injustice. It is only available in the limited number of situations.
There are different views as to the scope for equity to intervene. Some cases have proceeded on the basis that there is a wider jurisdiction. However, the majority view since it is only available in a relatively limited number of situations and the alleged wider jurisdiction has been consistently rejected by the higher courts.
The general principle called proprietary estoppel is that where a person acts to his detriment such as typically by spending money or making other commitment by way of time and effort on the basis of an expectation created by another that he was of an interest in property and that other encourages him to spend money and make equivalent commitment on the basis of an expectation of this interest. Equity may require that the interest be granted.
Requirements for Proprietary Estoppel
The person concerned must have incurred expenditure or acted to his detriment. Acting to a detriment could mean that a person takes a deliberate course of action that prejudices himself or for goals of the significant opportunity.
The action must have been undertaken on the basis of an expectation or belief that an interest in the property would be granted. Such expectation or belief must have been encouraged by the other person, in this case, the deceased.
Equitable remedies are discretionary so that there is no automatic right. Even if a person falls into the above category, there must not be circumstances, which bar the application of the rights.
Expectation of Benefit
The concept of proprietary estoppel has been applied in many cases in Ireland where persons have been encouraged to believe that they will receive a gift by will and in faith of that encouragement they act to their detriment e.g. sell their existing property and move in, for example, care for the deceased on the encouragement and expectation that they will receive the benefits, which they have been led to believe they will receive.
The principle is that it must be unjust and inequitable for the person who has encouraged the other to act to his detriment to resile from the promise and assurance made. It is not enough for a person to act to his detriment, incur expenditure or make some chosen commitment in the hope or expectation that a benefit will be given or made available to him.
The hope and expectation must be created by the person against to whom the right is claimed. It may be enough that the hope or expectation is encouraged by silence, but there must be some acquiescence or implication by the person affected in the creation of that expectation.
A classic incidence, which has arisen in a number of cases, is where a person gives up a career or sells a propertye to look after another person in the expectation of receiving a gift or benefit encouraged or even promised by thatother person. In several cases, the person come to work on a farm for little or no wage.
Many cases involve a person building a house on the property of another. The general principle in this situation is that the house being a fixture comes into ownership of the landowner.
If a landowner has encouraged the person to build a house or even if he has stood by where he could easily contradict the position and that the possibility that he has believed that he would acquire an interest in land he is likely to be estopped on the above principle.
Promise to make Will
A contract to make a will can, in principle, be valid. However, in most cases where a person acts on the expectation of a benefit, it will be difficult to find a legally binding contract. A gift will not be protected unless the property is actually transferred.
A promise to make a gift in lifetime or by will not be required to be fulfilled by a court of law or equity. A gift will be upheld only if the property is actually transferred. An agreement to make a gift without any contract (with consideration or by deed) is not enforceable even by a court of equity.
A court of equity may, however, intervene where it finds a basis for estoppel such as above. If the person promising the gift has induced the person promised to act his or her judgment in the expectation or encouragement of receiving a gift, he may be estopped from denying it.
Override Formality Requirements
Even if a contract can be found in relation to the transfer of an interest on land the Conveyancing Act requires that the contract be evidenced in writing and signed by the donor. A will must be executed with two witnesses and in compliance with the statutory formalities. However, where the principle of estoppel applies no written contract is required.
This reflects the principle that equity will not allow a statute and in particular, a statute providing a technical requirement such as writing for thetransfer of land to be used to interfere as to cause injustice or have an unconscionable efeect in the circumstances.
Nature of Equiable Relief
Where a deceased has either contracted to or is bound by way of the above principle of estoppel to give an interest in land, then thisoverride his will or intestacy. It will effectively bind his estate an beneficiaries, in the same way as a contract. They may take legal title to the assets but must hold them in trust for the person entitled under the equitable principles.
Equitable remedies are not available as a right. If an equity arises and there is no bar to the ground of relief, then the court will grant a remedy that is just and fair in the circumstances.
The exact scope of the equitable principle of a proprietary estoppel is the subject of different opinions in different cases. A view, which no longer holds is that money must be spent by the person who acts to his detriment. However, if the person provides labour or services on the land of another, it is now established that this may be sufficient grouund for raising an equity.
A broader concept, the so-called new model constructive trust, was proposed in some ccases. . Under this broader principle, where a person holds property in circumstances in equity and in good conscious, which he should not hold and should be held by another, he may be compelled to hold the property in trust for that other.
It may be imposed by a court of equity to restore a benefit of which the claimant has been deprived. Under the broadest view, the new model concept trust may be imposed whenever justice and good conscience so requires. On this view, it may be imposed to prevent unjust enrichment.
Under this broader principle, which has elements of unjust enrichment, a person may be required to restore to the claimant the benefit, which it would be unjust for him to retain.
In one case where a person intended to transfer properties to his wife, so that a third person would not benefit, a trust was held to apply. In another case, where some parts of the property were omitted in error from a transfers, it was regarded as a clearly unjust that a person who was intended not to be benefited, would benefit from an unintended error.
There have been a significant number of Irish cases over the years, in contrast to the narrower position in England in which equitable principles have been applied in order to prevent injustice.
The principle of advancement is an equitable principle, where a gift is intended to make permanent provision for a child. Under the principle, the lifetime provision is added to the benefit / money passing on death and the person who has received the investment is deemed to have already received this amount.
Where such a permanent provision has been made, the advance may be taken into account in satisfaction of the share of the child under a will or intestacy. However, this is subject to a contrary intention being shown.
Many wills specifically provide that no advancement is to be taken into account in the distribution of the estate. This ensures that no argument can be made that a permanent lifetime provision already made counts in satisfaction of the entitlement under the will.
Under the principle of secret trust, a person may be given a benefit on the basis of a prior agreement with the deceased that he will hold the benefit for another. In this case, the trust will not be a part of the face of the will where since an agreement has been made (which need not be a contract) equity will require the person who holds the benefit in accordance with the agreement and understanding with the deceased. This is a so-called fully secret trust.
A half part secret trust is where a part on the phase of the will that the benefit is to be held on trust, but it is not apparently who the trustee is.
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