Been Promised Something By A Loved One

Have you been promised something by a loved one only to discover following their death that your relative or friend did not formalise that promise to you in their Will? Let’s look at what options are available to you to challenge a person’s Will where such a promise has been made, but not allowed for or followed through.

If you are a child, grandchild, spouse, partner or relative of the deceased person, you can challenge a Will under the Family Protection Act.

If you are not a child, grandchild, spouse, partner or relative of the deceased person and the deceased person made a promise, which was not recorded in their Will, under the Law Reform (Testamentary Promises) Act you may be able to challenge their Will. Such a claim must be filed in the High Court within 12 months of a Grant of Probate or Administration of the Will. Providing the deceased’s estate has not already been distributed to the beneficiaries under the Will, the Court does have a discretion to extend this time frame. The criteria required to make a claim based on a promise, can be difficult with such evidence preferably needing to be in writing (ie such as notes from the deceased person or their previous Wills) showing the deceased person’s intentions. In the absence of such written evidence, making such a claim can be difficult to succeed (not to mention costly), given the likelihood of such evidence needing to be validated to the Court by other witnesses, which in itself could pose a problem if there are no other witnesses.

If the deceased person made a promise to provide for a person in return for services or work provided during the deceased person’s lifetime (ie whilst the deceased person was unwell, or they provided some form of help to them personally, or looked after their property) such circumstances can create provision for a person to make a claim against the deceased person’s Will.

Whilst deciding whether or not to make a claim against a deceased person’s Will and before the Court makes an award in favour of a person making a claim, relevant factors considered by the Court include:

• The surrounding circumstances existing when the promise was made including the level of services provided or work performed;
• The value of the services provided or work performed as well as the frequency of such services provided or work performed;
• The value of what was promised in relation to work performed;
• The total amount of the estate (if it is a small value estate then a Testamentary Promises Act claim is more likely to be unsuccessful); and
• The nature and amounts of the claim made against the estate by other people (ie if other people were to make a stronger claim against the deceased person’s estate, particularly if a child had not been provided for in his/her late parent’s Will, then a “promise-based” claim may be weakened).

Generally speaking, the larger the estate the more likely a Testamentary Promises Act claim could be successful, providing sufficient evidence is provided to the Court about the nature of the promise, the services and whatever work was performed in exchange for that promise. Most importantly, you need to not only succeed in proving a promise existed in the first place, but that the promise was for reward in exchange for provision of services and that the deceased person failed to follow through with their promise.

If you consider you have grounds for challenging a deceased person’s Will, our experienced Ward Adams Bryan-Lamb team would welcome an opportunity to have an initial fixed fee consultation with you to suit most people’s needs, during which time facts pertaining to your particular circumstances will be discussed with you, so you can quickly learn what options are then available to you from there.

Debbie Bryan-Lamb