Can you challenge a Will based on a broken promise?

Sabey v. Beardsley, a recent decision from the BC Supreme Court, involved a dispute as to the rightful owner of a farm property located in Langley. The dispute arose because the Will of the deceased (Kim von Hopffgarten) provided that the property would go to one person (Burgi Rommel) but the farm had been promised to another person (Jesse Sabey), who lived and worked on the farm. The farm had previously been owned jointly by Kim and her husband Dietrich, who died in 2006.

Jesse began visiting the farm as a teenager and took dressage horseback riding lessons from Kim and Dietrich. Jesse was very close to the couple and eventually moved to the farm as a working student to assist with the horses and the maintenance of the farm. At the same time, he studied accounting in Bellingham and commuted back and forth between the farm in Canada and his school in the United States. Although Jesse did receive free boarding and some free groceries and dressage lessons, he was paid less than other students who worked on the farm.

Jesse challenged the will and his primary argument was based on the equitable principal of proprietary estoppel. In basic terms, a claim for proprietary estoppel can be made where three requirements are met: (1) one person makes a representation or promise to another; (2) the second person reasonably relies on the representation or promise; and (3) in relying on the promise or representation, the second person suffers some sort of detriment.

The court ultimately agreed that Jesse’s claim for proprietary estoppel was made out and that he was entitled to the farm. The court accepted Jesse’s evidence that he had been assured by Dietrich and Kim that the farm would one day belong to him. Jessie’s evidence was also supported by the fact that Kim had attempted to prepare a codicil to her will to change the gift of the farm from Burgi to Jesse, but the codicil was not properly executed and was therefore invalid. The court also found that Jesse relied on the statements made by Dietrich and Kim to his detriment since he organized his career choices and personal life around the farm in order to maximize his time available to work on the farm on the assumption that he would own the farm in the future.

This case is a reminder of how powerful a claim in proprietary estoppel can be, since a successfully established claim allows a court to ignore the provisions of the deceased’s Will. It is also interesting to note that if this case was decided under the Wills Estates and Succession Act (WESA), which is due to come into force on March 31st, 2014, it may have been possible for the court to give effect to the codicil. Under WESA, courts will have expanded powers to cure deficiencies in a will or codicil that was not executed in accordance with the technical requirements of the legislation.

Posted on Your Estate Matters  May 6th, 2013 by Areet Kaila

The Your Estate Matters blog is published by the Wealth Preservation Group of Clark Wilson LLP in Vancouver, BC.

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