New Zealand: A promise is a promise - Testamentary promises

Last Updated: 17 July 2018
Article by Glenn Cooper


There have been two recent notable High Court decisions regarding testamentary promises.

Basically, a testamentary promise is made when one person agrees with another that the one party will make provision for another in their will to reward them for services and work. If the promise is shown and the provision was not made in the will, the Court will, subject to provisions, order the executors to honour the promise.

The first decision was the matter of Le Couteur v Norris and others [2018] NZHC 1074, which involved a claim by a daughter against her mother's estate. The daughter is a residual beneficiary of her mother's estate, together with her two brothers. The mother's will had provided for the daughter to inherit a property previously owned by the mother. That property had been sold years prior to the mother's death and the gift was not capable of being made. The daughter however alleged that her mother had promised to leave to her the mother's residential property, where ever that may be, as a reward for the loving kindness shown to her mother during her lifetime. The daughter asked the Court to find that her mother had made a testamentary promise and to order the transfer of the mother's residential property to her, even though there was no such provision in her mother's will. The Court dismissed the daughter's claim and it is currently being appealed.

The relevant provision to bring such a claim is section 3 of the Law Reform (Testamentary) Promises Act 1949 (the Act). Applying this provision, the daughter was required to prove that her mother had made a promise to reward her daughter for services and work by way of a testamentary provision (in this case, her residential property, wherever that may be). In order to establish the claim the daughter was required to prove that a promise was made by her mother to her and that there was a nexus between the promise and the services or work. In this case, the services and work was the loving kindness the daughter had shown her mother during her lifetime (Jones v Public Trustee [1962] NZLR 363). Loving kindness included love, affection, support and companionship. It should be noted that services and work is required to go beyond the normal incidents of a family relationship (Byrne v Bishop [2001] 3 NZLR 780).

The Court was asked to determine whether the mother had made a promise to leave her home to her daughter as a reward for services and work. If so, the Court was asked whether the promised reward was reasonable, having regard to the services or work.

The Court found that the mother had not made a qualifying promise to her daughter. It said that even though the will had left the mother's then residential property to the daughter that did not mean the mother's residential property, where ever it may be, was left to the daughter. The Court noted that the reason why the daughter was left the previous property in the will was over concerns about the daughter's marriage. This suggested the previous property was not a reward for the loving kindness the daughter had shown to her mother. The Court went on to comment, albeit that it was not required to, given the finding that there was no qualifying promise, that the love, affection, support and companionship provided by the daughter to her mother was not unexpected in a loving family relationship and there was anyway insufficient detail to assess whether the such services and work would have qualified.

The second case is McBeth v Morrison [2018] NZHC 1081, which is an appeal from a Family Court decision. The appeal was brought after the Family Court struck out a claim brought by a friend of a deceased who said that he was promised the deceased's collection of motor bikes after he died. The friend and the deceased shared a passion for restoring and racing motor bikes and were both enthusiasts. It was found on the evidence that the assistance given to the deceased by his friend was for the purposes of preserving and maintaining the motor bikes as an enthusiast and not for a reward for services provided to the deceased.

The Court found that there was no link between the services and expectation of receiving the motor bikes on the deceased's death. Accordingly there was no qualifying promise to make provision in the deceased's will for a reward for services.

In summary, 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. Further 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 content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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