Be Careful What You Promise: Proprietary Estoppel in Cowper-Smith v Morgan

Estates, Trusts & Pensions Journal, Forthcoming

24 Pages Posted: 2 Jan 2019

See all articles by Rachael Kwan

Rachael Kwan

Garfinkle Biderman LLP

Jason Chin

The University of Queensland - T.C. Beirne School of Law

Date Written: December 15, 2018

Abstract

In Cowper-Smith v Morgan, the Supreme Court has clarified the Canadian approach to proprietary estoppel. After a review of the evolution of the law of proprietary estoppel in Australia and England, we will analyze the trial, divided appeal decisions and Supreme Court decisions in Cowper-Smith v Morgan. In Cowper-Smith v Morgan, the Supreme Court has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in an estates case concerning promises exchanged between children of the deceased concerning their mother’s care during her lifetime. The Supreme Court held that the fact that a party lacked an interest in the disputed property at the time of the promise did not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. In both its interpretation of the scope of proprietary estoppel and the remedy fashioned by the majority, the Supreme Court has infused this remedy with greater flexibility to satisfy the equity at issue.

Keywords: estoppel, proprietary estoppel, Cower-Smith v Morgan, Thorner v Major

JEL Classification: K19

Suggested Citation

Kwan, Rachael and Chin, Jason, Be Careful What You Promise: Proprietary Estoppel in Cowper-Smith v Morgan (December 15, 2018). Estates, Trusts & Pensions Journal, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3301763

Rachael Kwan

Garfinkle Biderman LLP ( email )

Canada

Jason Chin (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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