When detriment need not be detrimental

Winter v Winter and proprietary estoppel

Jordan Holland

Although the equitable doctrine of proprietary estoppel has origins in decisions of the Court of Chancery in the 19th century, it did not begin to form a significant part of the armoury of the court's equitable jurisdiction until it was "re-discovered" and considerably expanded in the late 20th and early part of this century, notably into the domestic testamentary context. Here, it is perhaps unique amongst species of equitable estoppel as being capable of being used as a "sword" and not merely a "shield". While some legal commentators pronounced the death knell of this expansion following the House of Lords' decision in Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55 (the first time that the doctrine had been considered at the highest appellate level), the decision in Thorner v Major [2009] UKHL 18, handed down by the House of Lords only eight months later, could leave nobody in doubt that proprietary estoppel in the domestic testamentary context was alive and well.