Jennifer G Connell

& Associates

Lawyers

0800 ATTORNEY
(0800 288 676)
+64 9 630 7304 info@jgconnell.co.nz

Wills – Testamentary Promise Actions

Fri Oct. 3rd 2014

The Family Protection Act 1955 can be used to moderate Testators’ bequests. Under the Law Reform (Testamentary Promises) Act 1949 the Court can modify a Testator’s will. The Court is able to enforce a Testator’s moral as well as contractual obligations.

Any person may make a claim against a deceased person’s estate pursuant to the Law Reform (Testamentary Promises) Act 1949 if they can establish that he or she has rendered services to, or performed work for, the Testator and the Testator implied by or expressly promised to reward the person by making some testamentary provision for the claimant.

The Court will pay particular heed to:

  1. the circumstances in which the promise was made and in which the services or work were performed;
  2. the value of the services or work;
  3. the value of the testamentary provision promised;
  4. the amount of the estate; and
  5. the nature and amounts of the claims of other people on the estate, whether as creditors, beneficiaries, spouse, children, next of kin, or otherwise.

Whilst both Acts are concerned with the same social circumstances (being the distribution of property on the death of the deceased regardless of the will) both impose restraints on the freedom of testamentary disposition because they are concerned with rectifying the position of those who have a moral, as distinct from legal, claim to share in the estate of the deceased. The main difference between the two statutes is that the Family Protection Act 1955 is concerned with the discharge of familial responsibilities whereas the Law Reform (Testamentary Promises) Act 1949 is primarily concerned with obligations of a promissory nature and so the relationship with contract law is very strong.

A Court is likely to give preference to claims under the Family Protection Act 1955 for provision out of the will, especially if the estate is small.

As a general principle neither the Family Protection Act 1955, nor the Law Reform (Testamentary Promises) Act 1949 has precedence over the other and the main consideration of any concurrent claims will be to resolve the conflict in a way to meet the justice of the particular facts and to produce a just result as between the parties. Obviously, there are time limits for the commencement of any proceedings.

The contents of this article are for general information only and does not constitute legal advice and should not be substituted for professional legal advice obtained from your solicitor.