Proprietary estoppel and family provision: Competing moral obligations

Research output: Contribution to journalArticleResearchpeer-review

Abstract

As a result of reasonably recent developments in proprietary estoppel, it is now clear that promises to leave property by will can be enforceable in estoppel and may lead to the promisee receiving the promised property. However, this raises an overlap with family provision law that has had little consideration in this country. The currently accepted position in most Australian jurisdictions is that estoppel claims are subject to family provision legislation, by analogy with contract claims. This article explores the tension between estoppel and family provision in this context. It is argued that estoppel claims should not be subject to family provision legislation. Two reasons are offered. First, it is demonstrated that the High Court left the question open in Barns v Barns. Second, it is argued that significant practical difficulties occur if a court is required to apply the analogy but at the same time avoid an anomalous outcome.In the alternative, it is argued that if family provision legislation applies to estoppel claims, the legislation should require explicit consideration of the moral duty owed to the promisee. The NSW ‘notional estate’ provisions are considered and compared with the operation of the NZ Testamentary Promises Act. The NZ position is preferred.
Original languageEnglish
Pages (from-to)24-43
Number of pages20
JournalAustralian Property Law Journal
Volume26
Issue number1
Publication statusPublished - 2017

Cite this

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title = "Proprietary estoppel and family provision: Competing moral obligations",
abstract = "As a result of reasonably recent developments in proprietary estoppel, it is now clear that promises to leave property by will can be enforceable in estoppel and may lead to the promisee receiving the promised property. However, this raises an overlap with family provision law that has had little consideration in this country. The currently accepted position in most Australian jurisdictions is that estoppel claims are subject to family provision legislation, by analogy with contract claims. This article explores the tension between estoppel and family provision in this context. It is argued that estoppel claims should not be subject to family provision legislation. Two reasons are offered. First, it is demonstrated that the High Court left the question open in Barns v Barns. Second, it is argued that significant practical difficulties occur if a court is required to apply the analogy but at the same time avoid an anomalous outcome.In the alternative, it is argued that if family provision legislation applies to estoppel claims, the legislation should require explicit consideration of the moral duty owed to the promisee. The NSW ‘notional estate’ provisions are considered and compared with the operation of the NZ Testamentary Promises Act. The NZ position is preferred.",
author = "{Barkehall Thomas}, {Susan Jacqueline}",
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Proprietary estoppel and family provision : Competing moral obligations. / Barkehall Thomas, Susan Jacqueline.

In: Australian Property Law Journal, Vol. 26, No. 1, 2017, p. 24-43.

Research output: Contribution to journalArticleResearchpeer-review

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AB - As a result of reasonably recent developments in proprietary estoppel, it is now clear that promises to leave property by will can be enforceable in estoppel and may lead to the promisee receiving the promised property. However, this raises an overlap with family provision law that has had little consideration in this country. The currently accepted position in most Australian jurisdictions is that estoppel claims are subject to family provision legislation, by analogy with contract claims. This article explores the tension between estoppel and family provision in this context. It is argued that estoppel claims should not be subject to family provision legislation. Two reasons are offered. First, it is demonstrated that the High Court left the question open in Barns v Barns. Second, it is argued that significant practical difficulties occur if a court is required to apply the analogy but at the same time avoid an anomalous outcome.In the alternative, it is argued that if family provision legislation applies to estoppel claims, the legislation should require explicit consideration of the moral duty owed to the promisee. The NSW ‘notional estate’ provisions are considered and compared with the operation of the NZ Testamentary Promises Act. The NZ position is preferred.

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