The legal cure for undelivered testamentary promises

Equitable promissory estoppel, is typically focussed on the conscience of the defendant: it operates when the defendant has induced the plaintiff of an assumption that the defendant will not assert its strict legal rights, so to prevent unconscientious insistence by the defendant on them.

We have discussed situations where a family member (A) returns home to work on the family farm alongside his or her parent (B) with the promise that he or she will inherit the farm as a result. However that promise is not entered in the will or made known to the other family members.

In order to be successful in a claim it is necessary for A the person who acted on reliance of that promise to establish

(1) that it has assumed the terms of the promise are true;

(2) that B has induced or acquiesced in A’s adoption of that assumption;

(3) that A has acted in reliance on its assumption;

(4) that B knew or intended that A would so act; and

(5) that it will be detrimental to A if the assumption is not fulfilled.

In New Zealand the Law Reform (Testamentary Promises) Act 1949, recognisesthat if there is evidence that a Will maker made a promise and then fails to fulfil that promise that they would leave them something in their Will in return for services rendered or work done by the claimant.

If a promise is made by one party to another to provide for that person in the first party’s will, as a reward for services and work done by the other party, the Court will require the party making the claim to show that the promise was made, it will assess that there is a link between the promise made and the services and work done.

The Court will also consider the services and work done to satisfy itself that those services and work qualify as services and work for which a reward is appropriate. In addition, the Court will consider whether the reward was reasonable, regard being had to the services and work performed

The promise may be verbal or written, expressed or implied. A claimant must be able to show that they provided services or performed work and that the deceased made a promise to reward the claimant for those services or work by making some provision for the claimant in their Will. If established the Court can award the claimant reasonable payment out of the estate. When determining what is a reasonable amount the Court will have regard to all the circumstances of the case including the nature of the other claims on the estate.

Gary Wendt, Neville McBeth and others acquired, restored, raced and maintained classic motorcycles.

When Gary died in a car accident he had over 15 classic motorcycles in his collection. It was Neville’s firm belief that Gary had intended those motorcycles to go to Neville and his friends following his death, in order to continue to preserve and maintain the machines.

Gary’s Will had been made many years before his death. Andrea his defacto partner was named executrix and sole beneficiary. Some time before he was killed Gary & Andrea had separated and both entered into new relationships. Neville and the other applicants were upset to learn after Gary’s death that probate had been granted to Andrea.

Neville brought a claim however in dismissing the case the Court held that the proceedings were misconceived and legally untenable as he had not established the elements to found a claim under the Act.

On appeal the New Zealand High Court was satisfied that Neville had provided considerable assistance to Gary as they pursued their shared passion for collecting, restoring and racing classic motorcycles. Neville had acquired and modified parts that were incorporated into Gary’s motorcycles as well as assisting in logistical support for racing of those motorcycles.

However under s 3 of the Act a claimant must prove there was an express or implied promise by the deceased to reward the claimant for services or work provided by the claimant by making some testamentary provision for the claimant

The Court was satisfied that Gary told Neville and others that he would be leaving his motorcycles to them. However there was insufficient evidence to establish a claim under the Act between the services that Neville provided to Gary and the expectation of receiving some of  his motorcycles following his death

“I can understand the disappointment McBeth and other friends of Mr Wendt when they learnt Wendt made no special provision in his will for the distribution of motorcycles,”

Neville told the Court the assistance that he and others gave Gary over the years had been given with no expectation of reward. Neville said he happy to help his friend who had a high profile among motorcycle enthusiasts and Gary wished to pass on his motorcycles for the purpose of preserving and maintaining them and not as a reward for services provided to him.

The High Court dismissed the appeal, ruling that Neville had not presented enough evidence of the work he had carried out on the bikes or of Gary’s promise to him.

Neville has said he will appeal this decision.

I have posted previously that Wills are documents that should be updated regularly. If a Will is not reviewed regularly then your estate may not be distributed in the way that you or your loved ones wish.





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