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Testamentary Promises

By Tony Johnson - 26 Mar 2010

Testamentary promise claims relate to a deceased person's unfulfilled promise to reward an individual by provision in their Will.

The unfulfilled promise can relate to services already provided or services yet to be provided at the time of death.  If no reward or payment is actually included in the Will, the Law Reform (Testamentary Promises) Act allows the Will to be contested.

In a testamentary promise claim, the Court will consider how badly (if at all) the deceased person failed to remunerate the service provider.  The Court will allow a claim against the deceased's estate in the same way and to the same extent as if the promise was a promise for payment by the deceased while he or she was alive.

Essentially, the Court will consider the following factors:

  • The circumstances in which the promise was made
  • The performance of the services, which may include intangible things such as companionship
  • The value of the services or work provided
  • The value of what was promised
  • The size of the deceased estate
  • The nature and amounts of the claims of other people on the estate, whether as creditors, beneficiaries, spouse, children, next of kin, or otherwise.

The Court can make any order it believes is just when compensating a claimant.  This may include awarding a reasonable sum to the claimant or vesting property in the claimant.  However, the award will be no more than is reasonable to compensate the claimant.

If you want to know more about testamentary promises, contact Tony Johnson or Claire Mansell.


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