Q&As

Where, under Will 1, Person A (independent adult) is a beneficiary of X% of the beneficial interest in a property forming part of the residue of the testator's estate and a cohabitation agreement between Person A and the testator has also been put in place to this effect, but, under Will 2, they have no interest, what claim(s) (if any) is open for Person A to make and against whom (including the personal representatives)?

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Produced in partnership with Molly Hunter,b gh of Mishcon de Reya
Published on LexisPSL on 24/11/2020

The following Wills & Probate Q&A Produced in partnership with Molly Hunter,b gh of Mishcon de Reya provides comprehensive and up to date legal information covering:

  • Where, under Will 1, Person A (independent adult) is a beneficiary of X% of the beneficial interest in a property forming part of the residue of the testator's estate and a cohabitation agreement between Person A and the testator has also been put in place to this effect, but, under Will 2, they have no interest, what claim(s) (if any) is open for Person A to make and against whom (including the personal representatives)?
  • Proprietary estoppel
  • Constructive trust
  • Inheritance (Provision for Family and Dependants) Act 1975

It may be open to Person A to make a claim on the grounds set out below against the testator's estate (the estate) for X% of the beneficial interest in the property. The residuary beneficiary/ies will be a party to the claim, as will be the personal representatives who should remain neutral.

The following claims could be made:

  1. a proprietary estoppel claim, or in the alternative

  2. a constructive trust claim

It may also be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) (see further below).

The key difference between constructive trusts and proprietary estoppel concerns the flexibility of the restitution the court can make. A constructive trust claim concerns the equitable share of the property the claimant would receive. Proprietary estoppel gives the court the ability to award a more appropriate interest in the property which, in this instance, could reflect Person A's rights under the cohabitation agreement.

A factor in the strength of the claim will be the terms and enforceability of the cohabitation agreement and whether it had come to an end prior to the testator's death. We will assume, however, that the cohabitation agreement was still in place at the testator's death.

Proprietary estoppel

Equitable estoppel would arise where Person A has been promised X% beneficial interest in the property and they have

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