What are my options if I was promised family land in Nova Scotia but the Will leaves the land to someone else?
Wills can only direct assets that belong to the Estate
The important thing to remember in a circumstance such as this one is that a person can only direct who inherits their estate assets with a Will. The critical question to determine is, did the property belong to the testator at the time of his death, or were they only holding it in trust for the person they promised it to?
Proprietary Estoppel can force a person to honour their promise with respect to an interest in land in Nova Scotia
The answer lies in the concept of Proprietary Estoppel. Proprietary Estoppel is an equitable remedy that the court can use to prevent a person from going back on their promise related to an interest in land solely by relying on the black letter of the law. In these cases, that law would be the Statue of Fraud which requires that all transfer of interest in land must be in writing.
Proprietary Estoppel is a reasonably new cause of action in Nova Scotia
In 2017 the Supreme Court of Canada released a decision that confirmed that proprietary estoppel is a new valid cause of action in Canada. In 2021, the Nova Scotia Supreme Court followed this case and confirmed Proprietary Estoppel is valid in Nova Scotia as well.
Not every promise about land will be enforced under Proprietary Estoppel
For the court to determine that a promise with respect to an interest in land is enforceable using Proprietary Estoppel, you must prove that it would be unconscionable to allow the person to rescind the promise. The test for unconscionability is:
There was a mistake as to your legal rights;
You acted to your detriment based on that mistaken understanding;
The person who made the promise was aware of your mistaken understanding; and
They allowed or encouraged you to continue to act to your detriment.
You have to be able to prove that you acted, to your detriment (usually an expenditure of time and/or money) in reliance on the promise and that the person who made the promise was aware of your actions and allowed them to continue without clarifying that they didn’t actually intend for you to have an interest in the land. And finally, the promise must be specific. It would not be sufficient to say, for example, if you help me, you can have some of my land.
Land held in trust for another person is not an ‘Estate Asset’
If you are able to meet the tests and prove Proprietary Estoppel, then the court could deem that the estate is holding the interest in the land in trust for you, meaning it is not theirs to distribute under the Will. Unfortunately, unless the estate representative agrees with you, you are likely going to require a court application to force them to transfer the interest in land into your name.
For more information on Proprietary Estoppel read our other blogs on the topic:
· ENFORCE PROMISES WITH RESPECT TO LAND IN NOVA SCOTIA WITH PROPRIETARY ESTOPPEL
By: Dianna Rievaj - Founding Lawyer
Have Questions For Us?:
If you have any questions about Administering an Estate or the Probate process, you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.
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