A promise made but a will left unsigned – is there a remedy? Image

A promise made but a will left unsigned – is there a remedy?

Posted: 23/10/2015

The case of Lothian v Dixon and Webb (2014) is interesting because it involves a will that was not executed before the deceased died. Despite this, the court largely gave effect to the intentions behind the will on the basis that the claimants successfully demonstrated that the deceased had made a promise to them that they had relied upon to their detriment. 

The deceased, Miss MacAruthur, owned a hotel by the sea. In 1983 she made a will leaving her residuary estate to her two cousins, Mrs Lothian and Mrs Webb. After a diagnosis of terminal cancer in 2010, Miss MacArthur realised that she would need to be taken care of and would need assistance running the hotel. Mrs Lothian, together with her husband, were asked by Miss MacArthur to assist her and, in return, she said she would leave Mr and Mrs Lothian her entire estate. 

Mr and Mrs Lothian were able to demonstrate that Miss MacArthur had made a promise to them - supported by witnesses and by her unsigned will. They were found to have relied on this promise to their detriment. 

Mrs Lothian moved from Scotland to the hotel in Scarborough and her husband visited once a month. They ran the hotel and together attended to Miss MacArthur’s every need despite “not knowing for how long they might be called upon to continue their support”. The judge commented that “in my judgement detriment of a substantial kind is clearly established”, despite Mr and Mrs Lothian being paid for “their time and trouble” and the free board and lodging that they (and their family members) were afforded whenever they were at the hotel. He said that “I do not regard these benefits for one moment as any kind of meaningful compensation or countervailing benefit for the open-ended commitment they gave at the outset and to which they both adhered”. 

Mr and Mrs Lothian received the whole estate subject to the payment of some legacies which were detailed in the 1983 will. This award was the amount that the judge found to be equivalent to their detriment, sufficient to make good the promise. 

This case did turn on its facts but it is always worth considering the alternative claim you may have as a disappointed beneficiary should a will be invalid on the basis of the formal execution rules. If you have been made a promise by someone which is not then reflected in their will, the law of equity may be able to save you and compensate you for your detriment.    

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