The Law Reform (Testamentary Promises) Act 1949 provides a legal framework for individuals to make claims against the estate of a deceased person based on promises made by the deceased to reward the claimant for services or work performed. This article summarises and analyses the key elements of a claim under the Act, discusses how courts assess the adequacy of testamentary provision, and highlights practical considerations for claimants, using a case study.

Key Elements of a Claim

There are four main elements to a claim under the Act:

1. Services Rendered: The claimant must have rendered services to, or performed work for, the deceased during their lifetime.
2. Promise to Reward: There must be an express or implied promise by the deceased to reward the claimant.
3. Nexus Between Services and Promise: A link must exist between the services rendered and the promise made.
4. Failure to Provide: The deceased must have failed to make the promised testamentary provision or otherwise remunerate the claimant.

Assessing Adequacy of Testamentary Provision

Courts consider several factors when determining whether the provision made in the will is sufficient to fulfil the promise:

• The circumstances in which the promise was made.
• The context and value of the services rendered.
• The implied value of the promised reward.
• The overall value of the estate.
• Competing claims from other beneficiaries.
• Any changes in circumstances or conduct of the claimant.

Practical Considerations for Claimants

• Evidence: Claimants must provide credible evidence of both the services and the promise.
• Establishing Nexus: Courts are more likely to infer a promise where services are extraordinary.
• Adequacy of Provision: The claimant must show that the will does not adequately fulfil the promise.
• Costs and Risks: Legal costs can be significant, and unsuccessful claims may result in liability for the estate’s and the other beneficiaries’ legal fees. Negotiating a settlement may be a prudent alternative.

Case Study

In the case study provided, the claimant was a neighbour (Amy) who received a $17,000 bequest and the right to select chattels. However, she had provided extensive support to the deceased over many years allowing him to continue to reside alone in his house in circumstances where he had no close family. Therefore, the adequacy of this provision was questionable. The size of the estate was considerable and there were no competing claims or beneficiaries. The residuary beneficiary, the Starship Foundation, contested the claim, especially given the lack of a specific promised amount. The case hinged on whether the bequest reasonably fulfilled the implied promise. The lack of certainty in the likely outcome, on both sides, resulted in a settlement to Amy of an increase of her bequest to $100,000.00.

As you can see how the Act applies is very fact specific. If you are in the position of having to defend such a claim or if you are considering bringing a claim yourself, contact our experts in Estate Litigation for advice on your situation.