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1. Since 1990 the ward has been living in a psychiatric hospital, unable to manage his own affairs. The ward’s committee now wants to sell the dwellinghouse in which he formerly lived because it has fallen into a dilapidated state. The ward is unmarried but his committee has ascertained that since 1978 he had been living in the dwellinghouse with a lady who still resides in it and who now claims rights in relation to it. This lady has been named as the respondent to this motion, a motion seeking an order for sale. As will appear later, it is obviously in the interests of the proper management of the ward’s estate that this be done, but the court is of course bound by any rights affecting the property and the court’s power of sale may be restricted by rights which may have been created by the ward. The issues now for determination are the nature of the rights, if any, to which the respondent is entitled in the property, and the proper order to be made in the circumstances.

2. The ward is now aged 73 years. He was admitted to a psychiatric hospital in Dublin on 19 July 1990 for investigation of a depressed mood, weight loss and inability to take care of himself. He was then depressed and disorientated, with decreased concentration and some short term and some long term loss of memory. It was established on assessment that he could not live on his own and that he required help with dressing, bathing, toileting and even with sorting out his own possessions. A diagnosis of multiple infarct dementia having been made he was transferred to a psycho-geriatric unit. Since then his mood has fluctuated and at times he is regarded as a suicide risk. In February of this year he became very agitated but a change in medication seemed to bring about an improvement for a limited time. His cognitive functions cannot improve but there is a possibility, but it is only a possibility, that his depression may improve. His life expectation is quite good, but he will need full-time institutional care for the rest of his life. I am quite satisfied that he will never be able to return to live in his former dwellinghouse. He made a will in 1988 and I think it is extremely unlikely that he will ever be capable of making another will.

3. When taken into wardship on 8 October 1990 the General Solicitor was appointed committee of his person and his estate. There is presently standing to the credit of his account the sum of £39,205.61. In addition he is the owner of a dwelling house the subject of these proceedings.

4. The respondent to this motion was born on 2 November 1944 so that she is now nearly 48 years of age. She married in 1965 but her husband left her in September 1971 and she has not heard from him since. There were two children of the marriage, a son born in July 1968 and a daughter born in February 1970 but as the respondent was unable to look after them they were brought up by her mother. In 1968 she suffered a brain tumour. The operation to remove it was successful and thereafter for some years she was able to work as a tailoress. But in 1977 a second brain tumour developed and although it was successfully removed she has since been disabled; her leg is permanently weakened so that she has to use a stick, and one of her arms is almost powerless. She has been unable to work and has had only a small disability pension on which to live. She has suffered from depression. This was so severe that in 1978 she required hospitalisation in a Dublin hospital. There she met the ward. He too was undergoing psychiatric treatment. They struck up a friendship which developed into a deeper relationship and resulted in his asking her to go to live with him in the dwelling which is the subject of these proceedings. They lived together as man and wife until 1990 when the ward had to be taken into hospital because of the illnesses to which I have referred. When they lived together the ward maintained the respondent out of his resources, and in addition gave her a small allowance to augment her disability pension.

5. The respondent’s claim to a legal interest in the ward’s dwelling is based on the following facts. She says that when she went to live with him that he represented to her that he would look after her, and that she would be sure of a home for the rest of her life. She says that he continued to make these representations to her and she acted on them. Furthermore, on 2 November 1988 the ward made a will. By it he bequeathed:-

6. The ward’s dwelling is now in a very dilapidated state, as appears from an architect’s report of 31 July 1991. Urgent repairs are needed to the roof and the rear wall, the house timbers need to be checked and because of damp penetration their replacement may be necessary. The cost of making the house structurally sound is estimated at £34,000. The ward’s only money is a sum of £39,205 and out of this, liabilities will have to be discharged including (a) such sums that may be due to the hospital, (b) the cost of future maintenance, (c) costs of the committee (past and future), (d) the possibility of future specialist nursing for the ward and (e) eventually his funeral expenses. The respondent agrees that the dwelling is in need of repairs but has obtained a contractor’s estimate that urgent repairs could be carried out at a cost of £3,000.

7. The claims advanced on behalf of the respondent are based (a) on the representations made to her at the time she went to live with the ward and subsequently and (b) the representations made on 2 November 1988. She relies on the principles of the law of estoppel. For present purposes I will use the classification which is now generally accepted (see Snell’s Principles of Equity, 28th ed., p. 554 and Halsbury’s Laws of England (4th ed.), vol. 16, 1071, 1072) and refer to (i) promissory estoppel and (ii) proprietary estoppel. A promissory estoppel will arise where by words or conduct a person makes an unambiguous representation as to his future conduct, intending that the representation will be relied on, and to affect the legal relations between the parties and the representee acts on it or alters his or her position to his or her detriment the representor will not be permitted to act inconsistently with it (see Snell’s Principles of Equity, 28th ed., 556). If the subject matter of the representation is land, no right or interest in the land results from this estoppel - a personal right is vested in the representee which will preclude the representor from enforcing a title to the land. A proprietary estoppel is different in a number of ways. When it relates to land it may result in the creation of rights in or over the land. It has been explained as follows:-

8. Where one person (A) has acted to his detriment on the faith of a belief, which was known to and encouraged by another person (B), that he either has or is going to be given a right in or over B’s property, B cannot insist on his strict legal rights if to do so would be inconsistent with A’s belief. (See In re Basham [1987] 1 All ER 405 at 410).

9. In reaching its conclusions the Privy Council firstly held that s. 12 did not apply as the right on which the defendant relied was a purely personal right and no ‘dealing’ with the land in breach of the section had occurred. Its opinion was that it might have been possible, but for the provisions of that section, to have made out an entitlement to an equitable interest in the land but this had not been claimed. The claim advanced was a more modest one, namely that the requirements of a promissory estoppel existed. It was pointed out that the plaintiff had represented to the defendant that the house would be a permanent home for herself and her children, that in reasonable reliance on this representation she acted to her detriment by giving up her flat, that it was not possible to restore her to her former position. In these circumstances it would be ‘plainly inequitable’ the court concluded for the plaintiff to evict her and held that she had permission to reside permanently in the house, that this was a personal right which did not amount to a property interest diminishing the right of the plaintiff’s lessor or mortgagee.

10. Another example of the operation of the doctrine of proprietary estoppel is to be found in ln re Basham [1987] 1 All ER 405. The plaintiff’s mother married a second time when the plaintiff was aged 15. The plaintiff worked for her stepfather without payment for many years, helping him to run various public houses and a service station. After she had herself married she considered moving elsewhere but she was dissuaded by her stepfather from doing so. After the death of her mother she looked after her stepfather. He owned a cottage and on many occasions he indicated to her that she would get the cottage on his death in return for what she had been doing for him and also his estate. But he died intestate and two nieces were his next of kin. The plaintiff instituted these proceedings claiming a declaration that she was entitled to the deceased’s entire estate because the deceased had induced and encouraged in her the expectation or belief that she would receive the estate on his death and because she had acted to her detriment in reliance on that expectation a proprietary estoppel arose in her favour. She succeeded in her claim.

11. Having stated the principle of proprietary estoppel already quoted, the court pointed out that although the principle is commonly known as proprietary estoppel where the belief is that A is going to be given a right in the future it may properly be regarded as giving rise to a species of constructive trust, the concept employed by a court of equity to prevent a person from relying on his legal rights when it would be unconscionable for him to do so. The court held that a proprietary estoppel could be raised when an expectation exists that future rights would be given over a person’s residuary estate. As the plaintiff’s belief that she would inherit the estate had been encouraged by the deceased and as the plaintiff had acted to her detriment in subordinating her own interests to the wishes of the deceased in reliance on her belief that she would inherit, she had established a proprietary estoppel and was entitled to the estate. The court considered how effect should be given to the equity which had arisen in the plaintiff’s favour. It held that the extent of the equity was to have made good, as far as could fairly be done between the parties, the expectations which the deceased had encouraged. It followed from this that the plaintiff was entitled to a declaration that the personal representatives held the whole of the net estate in trust for the plaintiff.

12. In the light of the facts and the applicable legal principles, I have come to the following conclusions:-

13. In cases such as this the court must (a) ascertain the nature of the equity to which a representee is entitled and (b) decide in what way the equity may be satisfied (see Denning MR in Greasley v Cooke, op. cit., p.1312). The equity which the respondent has been able to establish is a right to reside in the ward’s dwellinghouse for her life and normally such a right would be satisfied by an order refusing to evict the representee or where the representor is a ward of court refusing to sell the dwellinghouse. But there are special circumstances in this case. The house is in a very serious state of dilapidation. Major work needs to be done on it. There has been severe damp penetration which has caused the timbers to rot. There is rising damp in the basement walls, the plumbing and electrical wiring needs to be replaced. The cost of doing the work was estimated last year as being £34,000 approximately. It is quite a large three storey house and the respondent no longer uses the basement. It is not reasonable to spend the ward’s limited resources in attempting to repair it and the respondent herself has no money to do so and no doubt it is declining in value all the time. The respondent’s equity can be satisfied by selling the house and buying another smaller one suitable for the respondent’s needs. It should be bought in the ward’s name but I will declare that the respondent has a right to reside in it for as long as she wishes. This will not of course prejudice in any way the rights she will have should the ward predecease her (as would normally be expected) and should he not revoke his will (a most remote eventuality).

14. In order to satisfy the equity the new house should meet the respondent’s reasonable needs for accommodation as a single person. It should be purchased in consultation with the respondent and should any difference arise this motion can be re-entered. The committee should take expert advice as to when to sell and when to purchase the new property.

15. I will therefore order that the premises be sold provided that there is made available to the respondent suitable alternative accommodation in a dwelling to be purchased in the ward’s name, and I will declare that the respondent has a right to live in the newly acquired dwelling for as long as she may wish.