14 June 2022

I was promised something under a Will but received nothing. What can I do?

The Law Reform (Testamentary Promises) Act 1949 (TPA) allows you to claim against the estate of the deceased person if they promised to leave you something under their Will but they don’t. The promise must be in exchange for services. Mowing lawns, driving them to the shops, working on a farm without pay, companionship and home cleaning are all examples of “services” that have been recognised under the TPA. The “promise” can be express, usually orally or in writing, or implied. The value can be explicit in dollar terms, but if not, the Court needs to assess the amount that should be awarded.  “Property” can be money, real estate or any other property.

Test

To make an award the Court needs to be satisfied:

• The applicant carried out services or performed work for the deceased during the deceased’s lifetime;
• The deceased either expressly or impliedly promised to reward the applicant;
• There is a connection between the services rendered or work performed and the promise; and
• The deceased failed to keep the promise in their Will or to otherwise pay the applicant.

Award

The award size must be reasonable in all the circumstances including the:

• Particular circumstances in which the promise was made, the services were carried out or the work was performed;
• Value of the services or work;
• Amount promised;
• Estate size;
• The nature and amounts of the claims of other persons in the estate, whether as creditors, beneficiaries, wife, husband, civil union partner, children, next-of-kin or others.

Example

Kevin Lock is a builder working in Hamilton.  He is asked to help Mrs Sand, a housebound elderly lady, by fixing her roof, which he does and is paid for.  Mr Lock gets along really well with Mrs Sand.  He lets her know he can help with any other tasks she needs and leaves his business card.  Mrs Sand calls up Mr Lock about once a month to do “odd jobs” around the house such as cleaning windows, fixing her TV and feeding her cat.  Occasionally he also stays for a cup of tea and a chat.  One day Mrs Sands says to Mr Lock “You are so helpful. What would I do without you? I’ll be sure to look after you in my will”.

After a year Mrs Sands needs to move to a rest home. Mr Lock helps coordinate with the rest home, move Mrs Sands into the rest home and ensures her house is secure.  He continues to visit her in the rest home, taking her for garden walks and talking with her.  The visits normally last for 1 to 2 hours.  Mrs Sands becomes frail and passes away peacefully with Mr Lock by her side.  At the funeral Mr Lock gives a eulogy.  Afterwards he talks to the lawyer for the estate who mentions Mrs Sands’ will left everything – her $900,000 house, KiwiSaver and share portfolio – to two charities.  Under the TPA Mr Lock was made a promise to be “looked after” in the will.  Because Mrs Sands did not specify the amount of the gift, the task for the Court is defining and valuing the  “services”:

• Roof fixing: Paid for during the deceased’s lifetime does not qualify;
• Domestic services: Odd jobs and window fixing are a valid claim;
• Feeding the cat: An intangible service.  The value depends on how much Mrs Sands appreciated this;
• Having a cup of tea with Mrs Sands: Companionship is a valid intangible service but it blurs into friendship;
• Helping Mrs Sands move to a rest home: Valid service;
• Companionship in the rest home: Again, potentially valid companionship service or alternatively friendly;
• Eulogy at funeral: Services done after Mrs Sands passed are not valid.

Comment

Because Mrs Sands did not specify the amount she would leave Mr Lock the Court can assess the value of the services by comparing the work to commercial rates for the same services, the value the deceased put on the services and what the Court considers just in the circumstances.

If you have questions about enforcing a promise of someone who has died, our Disputes Resolution Team are able to assist you.

If you would like further information, please contact Daniel Shore on 07 958 7477.