Challenging a Will on the basis of a Testamentary Promise

by Maretta Twentyman & Debbie Dunbar - Morrison Kent

The Law Reform (Testamentary Promises) Act 1949 allows people to seek provision from an estate if a deceased promised to reward them for a service undertaken while they were alive, but failed to record this in their will.

An example of this is a case where a deceased man had promised his grandson and his grandson’s de facto partner that he would “look after” them and their children. The deceased had lived with the couple for the last seven years of his 100-year life, and the grandson’s partner had taken on significant responsibility caring for him. This included meals, dishes, laundry, personal care, undertaking shopping and medical visits.

The circumstances were at times difficult, with the partner juggling the man’s care alongside that of her own children. The deceased was also recovering from major surgery at the beginning of his stay and suffered from increasing dementia. The grandson and partner separated following the man’s death, but the partner succeeded in her testamentary promises claim and was awarded $70,000. 

Anybody can make a claim under the Act, including spouses, partners, ex-partners, children, stepchildren, other family members or non-family members. The claimant needs to prove: 

  • They rendered services to, or performed work for, the deceased in the deceased’s lifetime;
  • There was a promise by the deceased to reward the claimant;
  • A link between the services and the promise; and 
  • That the deceased failed to make the promised testamentary provision or otherwise reward the claimant.

Examples of “work” or “services” rendered include personal care, housekeeping, financial assistance, assistance with properties or businesses, support and companionship.

Services within a family context will only meet the threshold if they go beyond what might be reasonably expected within the relationship. Therefore, while offering emotional support and companionship to a lonely neighbour might be enough, offering this to a parent or sibling might not be if that was simply an extension of the usual relationship.

The promise of reward can be express (e.g. “I will leave my house to you if you drive me to hospital appointments and take me shopping every week”), or implied (inferred from words or gestures).

It is important to get early advice when looking at challenging a will or estate, or defending such a challenge. You need to be aware of any applicable time limits, and explore ways to settle the issue without recourse to court proceedings. 

If you would like any further information or advice please contact either of the article authors: Maretta Twentyman or Debbie Dunbar, or the Morrison Kent Wellington office (04) 472-0020.


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