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Obligations when making a Will

March 2019

When providing instructions to us for the making of a Will there are two aspects that we need clients to carefully consider: 

  1. The provisions of the Family Protection Act; and 
  2. The provisions of the Law Reform (Testamentary Promises) Act. 

In a recent appeal to the High Court, consideration of both Acts was undertaken. 

S was the daughter of P. M had been in a 30 year long de facto relationship with P. In his Will, P left everything to his partner M. 

S gave evidence that she decided not to contest M’s Will even though she could have made an application under the Family Protection Act (as a child of the deceased). S said that she did not contest her father’s Will because of promises made to her by M (both before and after P died) on the basis that provision would be made for S in M’s Will. M subsequently married. She made a new Will leaving half of her New Zealand assets to S. 5 years later M made a further Will with no provision for S. Following Wills by M thereafter continued to make no provision for S. 

The High Court concluded that there was value to M in S not contesting her father’s Will on the basis of M forbearing to sue P’s estate (this being a “service” provided by S to M) and M promising to reward S for that service by making a testamentary provision in favour of S.

In relation to the Law Reform (Testamentary) Promises Act, the Court stated “the purpose of the Act is to provide a remedy when people do not keep their promise to make a testamentary provision”. 

The Court ordered a sizable portion of M’s estate to be paid to S.

The message here is to make a clear Will and don’t make promises you are not prepared to keep longer term.