Claims for broken promises

Examples of previous Testamentary Promises Act claims

Hill v Waddingham [2019] NZHC 3505

The deceased, Neville, farmed a property in Southland. The claimant, Emily, met Neville in 1980. Throughout their 36-year friendship, Emily would regularly travel from her home in Invercargill and work with Neville on his farm. Three years before his death, Neville told Emily that, in return, “there would be something in [his will] for her”. Neville left Emily $100,000 out of an estate worth around $6 million. Emily claimed that the $100,000 did not reasonably compensate her for the work and services she provided to Neville. She brought a claim under the Testamentary Promises Act seeking additional $400,000. 

The Court accepted that there had been a promise, that services had been performed, and that there was a link between the promise and the services. The key question was whether the promise had been fulfilled. (Although it is not discussed in the judgment, the Court must have regarded the promise as being to leave Emily something sufficient to compensate her for the services that she had performed, as there was no dispute that she had been left “something” under the will, which is what she had, in literal terms, been promised.) 

Having regard to the significant unpaid work, domestic help and companionship that Emily had provided for Neville, the Court held that the gift of $100,000 was insufficient. It made no difference that the deceased was a particularly frugal person who would have regarded that amount as a significant sum. The Court awarded Emily an additional $350,000.

McMillan v Pretty [2019] NZHC 1094

A nephew loaned $185,000 to his aunt interest-free to enable her to renovate her property on the basis of a promise that he would inherit the property after she and her husband died. Shortly after making the promise, the aunt made a new will leaving the property to the nephew, as she had said she would. When further funds were required to complete the renovations, the aunt again went to the nephew asking for money. The nephew was reluctant to lend further funds and the relationship broke down. Shortly thereafter, the aunt made a new will leaving the property to another family member and recording the funds owed to the nephew as a mere debt due.

The nephew brought a claim against the aunt’s estate seeking the property, which was by the time of the trial worth $1.4 million. The Court accepted that a testamentary promise had been made and not kept. Having regard to the position of the beneficiary of the estate, who was not wealthy, the Court awarded the claimant 75% of the value of the property. 

Annett v Nurmela [2018] NZHC 2841

The deceased, Andy, and the claimant, Pauline, had been friends for many years when Andy was badly injured in a car accident. Pauline provided Andy with intensive support for around seven months. Pauline helped Andy as he progressed from two crutches to one. She organised and got him to a variety of appointments to see doctors, specialists, associated xray/scan appointments, the bank, lawyers and building supply premises. She also regularly made and delivered meals to him. 

In return, Andy promised his home to Pauline on three occasions. While the promises were made freely, the Court regarded it as significant that Andy had made the promises at a time when he was recovering from his accident and in a position of vulnerability. The property comprised Andy’s entire estate and was worth around $1.4 million. Under his will, Andy had left the property to his brother, with whom Andy had little contact but was not estranged. 

Pauline brought a claim seeking 90 percent of the estate. The Family Court upheld the claim under the Testamentary Promises Act, but only to the value of $25,000, by reference to the appropriate hourly rate for a caregiver working full time. The High Court increased the award to $75,000 having regard to the significance of the services to Andy in a time of need and in the context of his family isolation. 

Le Couteur v Norris [2018] NZCA 572

The deceased, Sidney, had three children. She was closest with her daughter, Juliet, who was the only one of her children who lived in the same city as her. 

During the later years of Sidney’s life, Juliet provided assistance to Sidney, including:

• helping Sidney to care for her father until his death;
  
  
• visiting Sidney regularly, having her to visit and stay overnight, and staying with Sidney when she was bedridden for a period;
  
  
• including Sidney in Juliet’s “family life”, providing her with love and companionship, and with reassurance when she started suffering from memory loss;
  
  
• helping Sidney around the house and garden, shopping for her, assisting her with business and banking dealings, and providing transport for her, including taking her to medical appointments; and
  
  
• working only part-time in order to be available to support Sidney.

Sidney had also lived with Juliet for a couple of years before deciding to live independently again. Sidney moved out and purchased her own property, which she promised to leave to Juliet on her death. Sidney made a handwritten change to her will and prepared a note recording this promise. The note stated that the property was being left to Juliet “in appreciation for all her loving kindness to me always”.

As she got older, Sidney began to struggle with living independently, so she sold her house and she and Juliet bought adjoining properties in Parnell. Sidney told Juliet that she would inherit this new property on Sidney’s death, but she did not update her will to reflect this intention. Sidney became unwell, moved to hospital, and then died.  

The High Court held that Sidney had not specifically promised to leave the Parnell property to Juliet. The Court of Appeal reversed this finding, holding that the statement that Juliet would inherit the property on Sidney’s death was sufficient for the purposes of the Act. 

Somewhat surprisingly, the High Court considered that the support that Juliet had provided was no more than that which a loving daughter would provide. The Court of Appeal disagreed. It held that the services Juliet had provided far exceeded the normal services that a dutiful child might provide their aged parent, pointing out that Juliet’s efforts enabled her brothers to lead their own separate lives without them having to concern themselves with Sidney’s care.

The Court of Appeal held that, while family ties may have influenced Sidney’s desire to leave her property to Juliet, it was clear that Sidney was also moved to acknowledge what Juliet had done for her, thus creating a nexus between the services and the promise. This was evidenced by the note which Sidney had signed purporting to bequeath the earlier property to Juliet, the wording of which tied the intended gift to Juliet’s loving kindness (ie services) and confirmed that the gift was made for that purpose. The Court also referred to diary entries that Sidney had made recognising her obligation to Juliet for the services and support she had provided her. 

In deciding what amount Juliet should receive, the Court of Appeal had regard to the fact that the services were provided in the context of a strong mother/daughter relationship and that Juliet would also have enjoyed positive benefits from that relationship. The Court considered it relevant that Juliet would receive a one-third share of the balance of Sidney’s estate. Juliet was awarded an additional $590,000. 

Blumenthal v Stewart [2017] NZCA 181

Mr Blumenthal claimed against the estate of his late stepfather, Mr Steward, claiming that Mr Steward had promised to leave Mr Blumenthal his rural property. The Court of Appeal and High Court both dismissed Mr Blumenthal’s claim. The Court of Appeal found that Mr Blumenthal’s actions in helping his stepfather with the property, such as spraying weeds and maintaining the water pump, were no more than the norm in a close familial relationship such as the one shared by the men, and that the contributions made by Mr Blumenthal had already been offset by the benefits he received in having had the use of the property. The Court also held that there was nothing linking Mr Steward’s promise to the services that Mr Blumenthal provided, regarding it as more likely that it was Mr Steward’s close family relationship with Mr Blumenthal which motivated the promise, not the work that Mr Blumenthal had undertaken. 

Tawhai v Govorko [2015] NZHC 2874

Mr Robinson and Mr Tawhai were de facto partners. Mr Robinson was about 30 years older. He had dealt with serious illness for years and age exacerbated his health problems. When, aged 83, Mr Robinson sold his property and moved into Mr Tawhai’s home, Mr Tawhai became his full-time caregiver, and continued in this role until Mr Robinson’s death some nine years later. For this, Mr Tawhai was paid a small wage by WINZ as caregiver.

During his time as a full-time carer for Mr Robinson, Mr Tawhai fulfilled all of the household duties – cooking, cleaning, washing and mowing lawns – as well as caring for his partner’s personal needs, including liaising with lawyers and accountants, and ensuring that tax obligations were complied with. Mr Tawhai also had an integral role in managing the couple’s property investments, negotiating purchases, arranging mortgage advances and tenancies. 

The couple had a very busy social life and Mr Tawhai would accompany Mr Robinson to social engagements, and help him to participate in these with transport and helping him to converse, given his hearing difficulties. They regularly travelled together, and Mr Tawhai would assist Mr Robinson during these trips. Mr Robinson was adamant that he was not going into a rest home because they were “only for old people”.

Mr Robinson had told Mr Tawhai that he would “get the lot”, that he would “be a millionaire” and that he “had nothing to worry about”. He repeated these promises to Mr Tawhai in front of other people. In a will made at the time that he moved in with Mr Tawhai, Mr Robinson had left Mr Tawhai the majority of his estate. However, in later wills he progressively reduced Mr Tawhai’s entitlement. Mr Robinson’s final will left Mr Tawhai only around half of his estate. 

The Family Court held that the statements that Mr Robinson had made were insufficient to amount to a promise for the purposes of the Act. The Family Court Judge also held that there was nothing connecting the promise to the services, as Mr Tawhai would have made it clear that he was not motivated by the prospect of receiving Mr Robinson’s money. 

The High Court disagreed on both counts. It held that the clear inference from Mr Robinson’s statements was that he would make substantial testamentary provision for Mr Tawhai, and that this was a qualifying promise for the purposes of the Act.  The High Court held that Mr Tawhai’s motivation in providing the services (affection rather than a monetary incentive) was entirely irrelevant. 

The Court then considered what Mr Tawhai had received during their joint lives and under the operative will, “netting off” the benefits and burdens. The Court had regard to the parties’ overseas travel, the pooling of their financial resources into property and their lifestyle, the WINZ income that Mr Tawhai had received, and property which he had received from Mr Robinson by survivorship and under the will (in total around half of Mr Robinson’s estate). Taking this into account, the Court awarded Mr Tawhai a further $100,000 including legal costs. 

Powell v Public Trustee [2003] 1 NZLR 381 (CA)

Mr Birdling had promised to leave Mrs Powell his entire estate of $360,000. Mrs Powell worked at Mr Birdling’s home and farm and provided companionship and support over the decade before his death. The Court of Appeal found that Mrs Powell had “materially contributed to Mr Birdling’s ability to remain on the farm until his death”. Mrs Powell was awarded $120,000. 

Byrne v Bishop [2001] 3 NZLR 780 (CA)

The claimants had effectively adopted an elderly neighbour as a family member and provided him with 19 years of services. In an award going well beyond the normal range, even for a claim against a large estate, the claimants were awarded $1.4 million from an estate of $2.5 million.

Kite v May [2001] NZFLR 514 (HC)

The claimant worked as a housekeeper for the deceased and eventually became his de facto partner. In the years before he died the deceased was in very poor health and his partner supported him in ways that enabled him to avoid going into a resthome. She did the housekeeping, grocery and personal shopping, provided hospitality to friends and family, sexual intimacy and companionship. 

The Judge found that the services provided went above the norm: “…in the last two to three years of [the deceased’s] life, the services performed by [the claimant] could by no means be described as being merely of the “usual” kind which are incident on a relationship of that character. They went well beyond that, and enabled [the deceased] to live out his time at his beloved farm.” The claimant had been promised the provision of sufficient financial support to enable her to be financially independent, and a suitable house and car. She was awarded $200,000 out of an estate of $4 million. 

Re Berkett HC Christchurch M232/97, 2 November 1999

The claimant had provided services to the deceased for 20 years. Over the 10 years before he died, the claimant had provided services to the deceased akin to a caregiver. The claimant was awarded the full value of her claim: $220,000 from an estate of $1.1 million.