Promises that are not put into a Will – Your Options

Sometimes a friend or relative will make promises to someone that they will receive money or an asset under their Will, but they do not follow through in formalising that promise.  This article highlights the options available to people challenging a Will when a promise has not been included or followed through.

A person can make a claim against a Will if the deceased broke a promise to provide for them in return for work or services that they may have provided to the deceased during their life.  Sometimes this happens if someone has taken care of the deceased when they were sick, or they have looked after their property for them, or helped them out by providing a service. 

If you are a relative, child, grandchild, spouse or partner of the deceased, you would have an option to challenge the Will under the Family Protection Act. 

If you are not a child, grandchild, spouse or partner of the deceased, and a promise made by the deceased is not kept in their Will, then you may be challenging their Will under the Law Reform (Testamentary Promises) Act. 

Any claim under the Act must be filed in the High Court within 12 months of a Grant of Probate or Administration of the Will.  The Court can extend this timeframe, but it cannot do so if the deceased’s Estate has already been distributed to the Beneficiaries under the Will. 

It is on most occasions quite difficult under the criteria to make a claim based on a promise, because there needs to be evidence, usually written, such as notes from the Deceased or previous Wills showing the Deceased’s previous intentions.  Without independent evidence, it can be hard, or costly, to succeed.

In deciding whether to allow a claim, and then make an award in favour of the person making the claim, the Court will consider the following:

• The surrounding circumstances in which the promise was made, and the level of services and work that was performed;
• The value of the services or work performed, and in some cases the frequency of the services or work performed;
• The value of what was promised in relation to the work;
• The total amount of the Estate (if it is a small Estate then a Testamentary Promises Act claim is more likely to be unsuccessful); and
• The nature and amounts of the claim against the Estate by other people.  For example, if there are other people making a claim, and that their claim is stronger.  If it is a child who has missed out on receiving a benefit, then the promise-based claim may be weakened.

The general rule is that the larger the Estate, the more likely that a Testamentary Promises Act claim could be successful.  However this is provided that sufficient evidence is submitted to the Court about the nature of the promise, and the services and the work that was performed in exchange for that promise.  You need to succeed in proving a promise existed, that the promise was for reward for provision of services, and that this promise was not followed through.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.