What happens if someone promises to leave you something after they die, but then fails to actually do so? If you performed services for the deceased person in reliance on that promise then you may have a claim under the Law Reform (Testamentary Promises) Act 1949 (“TPA claim”).
To succeed in a TPA claim, you would need to prove that:
- You rendered services to, or performed work for, the deceased person during their lifetime;
- The deceased person made a promise to you , either express or implied, to reward the claimant for the services provided;
- There is a nexus between your services rendered or work performed and the promise; and
- The deceased person failed to make the promised testamentary provision or to otherwise remunerate you .
What is a promise?
Promises are defined broadly in the Act. It includes statements or representations of fact or intention. The promise may be made either before or after the services were rendered or the work performed.
It is not necessary that the deceased person ever specified an amount or particular piece of property as the reward. In one case, the Court found that statements such as “I will see you right” and “I will look after you” were sufficient.
In determining whether or not a promise has been made, the Courts may place more emphasis on what you could reasonably have understood by the deceased’s statement than on what the deceased actually intended. However, promises made “in the heat of the moment” and fuelled by emotion may not amount to a promise in terms of the TPA.
Additional evidence of the promise, such as written statements or confirmation by others, will strengthen your claim that the promise was made. However, claims without supporting evidence can still succeed. The Courts also consider the circumstances in which the promise was said to have been made.
Did you perform services for the deceased?
Services can be a variety of things. Cases have recognised things like:
- farm work and supervision;
- housekeeping and domestic services;
- financial advice and assistance with tax returns; or
- companionship, affection and emotional support.
If the claimant is a family member, they must show that this kind of support was “something extra” over and above what could normally be expected of a relative.
For example, the Court has found that a stepson’s frequent calls and visits to his stepfather and “odd jobs” around the house were normal in the context of the relationship. By contrast, carrying out significant maintenance and improvements to a house and providing full-time care is usually considered to be beyond what is normally expected.
Were the services related to the promise?
You must show that the promises was made, at least in part, to reward the you for services or work, either performed in the past or expected in the future.
That connection may be expressly stated by the deceased or more commonly inferred from the circumstances. The greater the services or work, the more likely the court is to infer that the promise was made as a reward for the services or work.
All TPA cases are depend by their distinctive facts. We are happy to discuss with you the merits of a potential claim that you have, or that someone else has made against an estate.
For more details on how much you might receive in a successful claim, see this article.
This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.
