Enforceable Testamentary Promises
At law, a generic promise is not an enforceable contract – and so if you’ve been promised that, “when I die, I’m going to leave you my house” or other asset – without something more, that type of promise is not enforceable. A fundamental principle of wills and estate planning is the concept of ‘freedom of testamentary disposition’ – put simply, a will maker is free to decide how to distribute their estate via there will.
Despite this, there can be certain situations which will create an enforceable testamentary promise. The critical elements in being able to prove an enforceable testamentary promise are:
The will maker (‘testator’) makes a representation to another person, that if they act in a certain way then they will receive a particular benefit.
The other person then relies on the will maker’s representation, relying on the promise to their detriment.
It would be unconscionable (i.e. unfair) to allow the will maker to fail to fulfill the promise that was made.
This can be best illustrated with an example:
An elderly father owns and operates a family farm in regional Queensland, but his health is deteriorating and he is in need of care and assistance.
His children all reside in other towns, but he convinces one daughter to move nearby and look after him, telling her that if she helps him then he’ll give her his house in his will (and divide everything else he owns equally between all of his children).
His daughter and her family move to regional Queensland to look after him. After moving, his daughter assists him and even spends significant amounts of her own money to make improvements to his house for him.
The father’s will doesn’t leave his house to his daughter, as he had promised.
In this type of scenario, equity law operates to fulfil the father’s promise, because his daughter relied on his promise to her detriment, and so it would be unfair to allow the father to break his promise to her.
Enforceable testamentary promises are difficult to establish, but in the right circumstances can be used to fulfil those promises where there has been detrimental reliance. If you believe you’ve been promised something under a will and that will hasn’t been fulfilled, contact us for a free 15-minute telephone conversation regarding your circumstances and how we might be able to assist you.