Challenging a Will when the deceased has not fulfilled a promise…

If someone completed work or services for the deceased and the deceased promised to reward or repay the person for those services but never did, a testamentary promise claim may be made against the Will.

An example of a successful testamentary promise claim is where a testator left a sum of money to a longstanding and close friend for her services over approximately 30 years.

During the 30-year period, the friend provided the deceased social support and companionship, routinely travelled to see the deceased, assisted him with medical appointments, and worked on his farm. Three years before the deceased passed away, he told his friend that there would be something in his Will for her.

In the deceased’s Will, the friend was left $100,000. The friend applied to the Court for this amount to be increased, arguing that the gift did not remunerate her services adequately. 

The Court found that there was a promise, the services and work done for the deceased by the friend went beyond that which would normally be expected of a friend or companion, and that the promise and the services were closely connected.

Even though the friend received some benefits from the friendship, the Court considered that $100,000 was not enough to fulfil the promise. In order to fulfil the promise, the friend was awarded a further $350,000.

Who can make a claim?

Testamentary promise claims are not restricted to a certain class of people, therefore anyone can make such a claim including people like friends, neighbours, and employees of the deceased.

In order to successfully make a testamentary promise claim, the claimant must establish the following requirements:

•          The claimant must have provided services to the deceased;
•          The deceased must have promised to reward the claimant for the services;
•          The work or services and the reward must be connected; and
•          The deceased must not have rewarded the claimant for the services and failed to make provision for the claimant              in their Will.

What work and services may apply?

The services provided to the deceased do not necessarily need to be exchangeable for money, but they do need to be valuable to the deceased. If the claimant is a family member of the deceased, the services need to be more than what is expected in a family relationship.

The services must also be connected to the promise. The services and the promise may be connected due to the timing of the promise in relation to the services, the reasons the deceased made the promise, or whether the services were completed because of the promise.

What can the Court do?

If a successful claim is made, the Court has discretion to award an amount that is reasonable to reward the services performed by the claimant. If the claimant was rewarded during the deceased’s life, then their claim will not be successful.

When determining the amount of an award, the Court is not restricted to awarding the real cost of the services. The Court may consider:

•          The circumstances in which the promise was made and the work or services were performed;
•          The amount of the estate; and
•          Any other claims against the estate.

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.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Gianna Menzies