People often ask whether an estate will ‘go to Probate’, although many are unclear exactly what this means. A Grant of Probate (or Letters of Administration if there is no Will) authorises the Executor to administer the estate by collecting in...
There can be a world of difference between a moral obligation and a legal one. The High Court made that point in rejecting a daughter's claim that part of her deceased mother's stake in a residential property was held on trust for her.
By the unequivocal terms of her will, the mother bequeathed her 71 per cent share of the property to her sister. She expressed a wish that the family matriarch should be permitted to live in the property for life and that, if she needed to go into care, the property should be sold to meet the costs involved.
After the mother's death, however, her daughter asserted that she had promised her more than once, prior to making the will, that she would be entitled to a share of the property. On that basis, she contended that the sister held 37.5 per cent of the mother's interest in the property – 26.625 per cent of the whole – on trust for her benefit.
The sister denied that any such agreement was reached, or promises given, so as to create a trust in the daughter's favour. She expressed a willingness to divide the property or its remaining proceeds of sale between herself and the daughter on the death of the family matriarch. She denied, however, that she was under any legal obligation to do so.
The Court noted that the daughter's case rested on the argument that her mother's promises had created a secret trust that was binding on the sister and took effect outside the terms of the will. She was aged 16 when her mother made the will and the latter had been anxious to reassure her that, after her death, she would receive a portion of the property and that the sister would look after her financially and otherwise.
In dismissing the daughter's claim, the Court found that the mother's vague and general assurances lacked the certainty required to give rise to a secret trust. They specified neither the percentage of the property that the daughter should receive nor when such a share should become hers. At the most, the mother expressed a wish that the sister would give the daughter something derived from the property. The sister gave no assurance of her own and, even had she acknowledged an obligation to the daughter, it would have been a moral one, not a legal one.