Burial Licence & Proprietary Estoppel

In yesterday’s post we discussed a situation where although Aristea and Joseph spoke several times about Helen’s burial arrangements the Court found that there wasn’t the requisite intention to enter into a legally binding contract. Aristea offered Joseph the option that Helen be buried in her burial plot and promised that she would transfer the licence to him so that in due course he would be able to be buried next to Helen. After Joseph agreed and Helen was buried Aristea didn’t keep her promise to transfer the burial licence to him. Joseph commenced proceedings to compel Aristea to transfer the burial licence to him.

Aristea had induced Joseph to assume that a burial licence would be transferred to him, and he acted in reliance on this assumption to his detriment; therefore the Court ordered the burial plot be transferred to him.

This principle is known as equitable estoppel. If found to exist, a person is bound by a promise that they make, even if the promise does not take the form of a contract.

On appeal Aristea argued that propriety estoppel relates to land and not a burial licence therefore the Judge at first instance erred in his finding. This argument was rejected.

The Court found that Aristea promised to transfer the burial licence to Joseph. She did so expressly on the basis that this would enable him in due course to be buried with Helen. She made that promise and insisted that Joseph bury Helen in the burial plot. The Court stated that the only inference that could be drawn from Aristea’s behavior was that she intended Joseph to rely on that promise when deciding where to bury his wife.

Joseph established that he had relied on that promise to his detriment in the sense that he then lost the ability to nominate that Helen be buried elsewhere and to control, during his lifetime, the right of nomination in respect of that burial plot. Therefore, to require Aristea to honour her promise would not be a disproportionate remedy.

Although the arrangement did not give rise to a legally binding contract, Aristea was estopped from denying that Joseph was entitled to the right to be buried in the burial plot. There was in effect a gift offered by Aristea and accepted unconditionally by Joseph of the burial plot as a resting place for Helen; followed by a separate promise, unsupported by consideration, that Aristea would transfer the burial licence to Joseph.

Notably the Court of Appeal affirmed the expanded meaning of proprietary estoppel even though the burial licence created contractual rights for remains to be buried in the relevant plot, and not a proprietary right over the plot (the licensee was not an owner or a lessee).