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A Testamentary Promises Claim

June 2019

Providing companionship, family life, support and affection well beyond the bonds of that of a dutiful daughter

 

In our article (“Obligations when making a Will”) in the Autumn 2019 edition of our newsletter we discussed briefly the Law Reform (Testamentary Promises) Act (“the Act”). A more recent case from our Court of Appeal concerning testamentary promises has been reported.

 

The Act provides that an estate of a “deceased person [is] liable to remunerate persons for work done under promise of testamentary provision”. “The promise need not amount to a contractual undertaking”.The work or services done “must have been beyond the normal expectations of family life”.

 

In this Court of Appeal case, Swas the deceased. Jwas her daughter. Shad two sons as well. Shad made a promise to leave S’shome to Jin return for services in caring for S. That original promise was recorded in S’sWill. However,Ssold the property mentioned without updating her Will. 

 

J made a “testamentary promises” claim that her brothers opposed. Their position was that the services provided by J, to their mother, were not over and above that which might be expected of a loving daughter in a close family relationship. They sought a division of the estate equally between the three siblings with no extra allowance to J.

 

In the case there was evidence of the promise being made more than once and repeated in relation to each of the propertiesSsubsequently owned or had an interest in. There was evidence of oral statements by S, of notation by Son a copy of S’s Will as to her promise and of numerous diary entries by S.

 

Extensive evidence was given as to the services provided by J. The Court categorised 25 different types of services provided and highlighted that many of the services were beyond the normal expectations of family life or social interaction. It “was satisfied that the services provided by J far exceeded the normal services that a dutiful child might provide their aged parent”. “J provided companionship, family life, support and affection well beyond the bonds of that of a dutiful daughter. While it is not a comparative exercise, J’s care for her mother enabled her brothers to lead their own separate lives without them having to concern themselves about S’s care”.

 

The Court held that there was sufficient connection between the promise and the services provided to justify the testamentary promises claim under the Act.Jwas awarded $590,000 from S’s estate (valued at between $2.4 and $3 million) together with a one-third share of the balance of the estate.