We often hear of a person’s Will being challenged. Recently the High Court heard a challenge to the estate of the late Supreme Court Judge Sir Robert Chambers. It can seem unfair that a person’s last Will can be challenged.
There are three statutes that are often used to challenge a person’s Will – the Family Protection Act 1955, the Property (Relationships) Act 1976 and the Law Reform (Testamentary Promises) Act 1949.
The first two allow the Court to effectively change a person’s Will if they fail to meet the responsibilities they incur during their lifetime. In the case of the Family Protection Act a moral duty is owed to close relatives and under the Property (Relationships) Act a surviving partner is entitled to a share of relationship property.
This article focuses on the third Act which is becoming more relevant in today’s society where family members are often spread all over the world.
A testamentary promise is where a person promises to leave something to another in their Will for services performed during the deceased’s lifetime, e.g. an elderly person might promise to reward a person in their Will if they care for them, provide transport or do jobs around their house. What can they do if the reward is not given in the Will as promised?
The person can bring a claim under the Law Reform (Testamentary Promises) Act (the Act) against the estate of a deceased. The claimant will need to show they rendered services or performed work for the deceased during the deceased’s lifetime and that there was an express or implied promise to reward the claimant by making some provision for them in the Will.
In the case of C v C the deceased’s daughter claimed to enforce her mother’s promise to leave her 60% of her estate in recognition of the daughter’s substantial day to day support which she provided over many years. The deceased mother had changed her mind and decided to treat her three children equally in her Will. The Court awarded the daughter 40% of the estate.
Typical scenarios where this Act might apply is where one child cares for their elderly parent while the other children live overseas or in different parts of New Zealand. The care-giving child might move in with the parent or the parent might move in with the child. The parent might promise to reward the care-giving child in the Will over and above any gift to the other children. When the Will is read it is discovered that all children are treated equally.
The Act has been interpreted quite broadly. A promise may be express or implied. In one case the deceased promised she would arrange for the person to be “properly rewarded”. These words, in the right circumstances, have been sufficient to constitute a testamentary promise.
The Court has held that an award under the Act should not be out of proportion to the services rendered therefore the award may not be the full reward promised.
There is a 12 month time limit to bring a claim so don’t delay.
