Macdonald & Anor v Frost

Proprietary estoppel requires an assurance relating to sufficiently identified property, reasonable reliance and detriment, assessed in context and with practical common sense. An assurance about a future inheritance or an estate is not automatically proprietary: the property must be identifiable, although precise boundaries are unnecessary. The court must also ask whether the claimant relied on the assurance to their detriment and whether it would be unconscionable to resile from it. Payments made as part of a separate bargain for an advance of property or capital do not establish reliance on later testamentary assurances. A natural expectation of inheritance, and later statements of present testamentary intention which do not induce new detriment, are insufficient. The claim therefore failed.

The claimants, daughters of the deceased, sought an equitable interest in his estate based on alleged assurances that his surviving estate would pass to them equally. They had made regular payments to their parents for about 20 years and relied on assurances allegedly given in 1986 and repeated later. The deceased subsequently married, made wills leaving his estate to his wife, and died in 2006. The central issues were whether the assurances concerned identified property, whether the claimants relied on them to their detriment, and whether it would be unconscionable for the deceased’s estate to be distributed under his final will.

1. Applicable principles. Proprietary estoppel requires a representation or assurance concerning an interest in identified property, reasonable reliance and detriment. The claimant must also establish that it would be unconscionable for the representor to resile. The leading modern authority was Thorner v Majors [2009] UKHL 18.
2. Clarity and identification. The assurance must be sufficiently clear in its context. The court should evaluate family assurances practically and sensibly, without demanding artificial precision. Nevertheless, the property must be identifiable. A reference to an estate or to future inheritance may, in context, refer to specific property, but such language will often be too vague. The reasoning in Re Basham [1986] 1 WLR 1498 required the utmost caution and could not establish a general rule that an assurance concerning a residuary estate sufficed.
3. Application. The 1986 arrangements were principally a bargain under which the daughters received an advance of the value of the Shop, while their monthly payments replaced the income which their parents had lost. The payments were not made in reliance on a promise that the daughters would later inherit the House. The later assurances in 1998 and 1999 stated the deceased’s then testamentary intentions, but the daughters would have continued making the payments regardless. They therefore involved no relevant detrimental reliance.
4. Changed circumstances and unconscionability. By the deceased’s remarriage and death, circumstances had materially changed. It was not unconscionable for him to leave the House to his wife and principal carer, even if another distribution might have appeared fairer.
5. The proprietary estoppel claim was dismissed. No restitutionary claim was established because the payments were not gratuitous and the parents had performed their side of the 1986 bargain.