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Wills

Testamentary promise

Blended families can be complicated.  Sarah Ross’s father, Phillip New, left his entire estate to his partner of 40 years Maureen Dwight.  Sarah did not challenge her father’s will on the basis that his partner Maureen promised that provision would be made for Sarah by Maureen in Maureen’s will.  A will was prepared to this effect. However, subsequent wills made no provision for Sarah.   No explanation was available to explain this.

Sarah filed proceedings challenging Maureen’s will in the Family Court where it was held that not challenging a will was a service for the purposes of the Law Reform (Testamentary Promises) Act 1964.  See Re Sellars, which confirms that forbearing to sue is a service for the Law Reform (Testamentary Promises) Act.  The fact that a service that has claimed to be rendered is intangible and incapable of precise monetary assessment does not militate against the service having been provided for the purposes of the Law Reform (Testamentary Promises) Act.

Note that any payment on account of a promise will depend on the size and circumstances of the estate.  Further, services do not consider the natural incidents and consequence’s of family life. See Re Welch.

Dwight v Ross provides a useful assessment of an actionable promise for the purposes of the Law Reform (Testamentary Promises) Act.

References:

  • Dwight v Ross [2018] NZHC 1764
  • Re Sellars (dec’d) [1996] NZFLR 971
  • Re Welch [1990] 3 NZLR 1

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