Thorner v Major (2009): Proprietary estoppel and inheritance

Mee, John

Thorner v Major (2009): Proprietary estoppel and inheritance

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ThornerChapterfromLandmarkCasesonSuccession.pdf(383.94 KB)

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Date

2019-10

Authors

Mee, John

Publisher

Hart Publishing

Abstract

This chapter considers the landmark status of the House of Lords in Thorner v Major [2009] UKHL 18, understanding it as an example of story-telling in the law. The chapter explores the issues surrounding the equitable doctrine of proprietary estoppel, as it applies in particular in the context of disputes over the inheritance of farms. It also considers another proprietary estoppel story, that found in the Irish case of Naylor v Maher [2012] IEHC 408, [2018] IECA 32. In the chapter's conclusion, it is suggested that: "With the testator generally out of the way and the actual beneficiaries under the will at a remove from the main narrative, the spotlight is firmly on the claimant. Once the matter is presented to the court in the form of the claimant’s story, it quite quickly comes to seem plausible to disregard the result dictated by the law of succession. In the complex context of a story, the simple succession law idea of a single testamentary intention, expressed formally in a will, is rather limiting. It takes comparatively little to justify the conclusion that, as in Thorner, the court should take account of the testator’s actual intention, even though it was not expressed in a valid will. When they are applying equity, the rhetoric of centuries encourages judges, like God in the old proverb, to ‘temper the harsh wind to the shorn lamb’. From the point of view of a judge, it must be more fulfilling to dispense discretionary justice to the parties before the court than to feel obliged to apply, in a more mechanical way, the strict rules of succession law. However, there is a cost. Stories are inherently unpredictable.

Keywords

Proprietary estoppel , Succession law , Equity , Equitable remedies , Narrative theory , Storytelling , Promises , Inheritance , Farms

Citation

Mee, J. (2019) 'Thorner v Major (2009): Proprietary estoppel and inheritance', in Sloan, B. (ed.) Landmark Cases in Succession Law. Oxford: Hart Publishing.