General Testamentary Promises

Question 1

What is the purpose of The Law Reform (Testamentary Promises Act 1949

Answer 1

An Act to make better for the enforcement of promises to make testamentary provision, in return for the services rendered. [remedial nature of the Act]

Question 2

What does S 3(1) say about a promise?

Answer 2

the claimant proves an express or implied promise by the deceased

Question 3

What does S 3 (1) of the Act say about services?

Answer 3

Requires a rendering of services or the performance of work by the claimant, in the deceased’s lifetime

Question 4

4 elements to make a claim under the Testamentary Promises Act

Answer 4

• rendering of services to, or performance of work for, the deceased in the deceased’s lifetime
• an express or implied promise by the deceased to reward the claimant (see s 2)
• a nexus between the services/work and the promise
• deceased’s failure to make testamentary provision or otherwise reward the claimant

Question 5

What does Jones say about the construction of the Act?

Answer 5

• A “liberal construction” should be taken towards s 3 – it is not necessary that the [promise / nexus / work or services] reach the level of a contractual bargain.

Question 6

What does Jones v PT say about nexus?

Answer 6

The promise must be to reward the promisee for work/services through a testamentary provision.

Not a mere promise to make testamentary provision which is not linked with, or founded upon such services or work.

Question 7

What does Jones v PT say about promise?

Answer 7

• focus on what the promisee understood about the promise being made (rather than true intentions or motivations of the promisor).

• the mere fact that promisee may be motivated by family connection / sentiment / moral obligation does not, of itself, negate the existence of a promise.

Question 8

Key points of law from Re Greenfield (corroborating evidence, promise, service)

Answer 8

• Lack of corroborating evidence of a promise is not fatal to a claim under the Act. No corroborating evidence here, yet the case was successful.

• There does not need to be an explicit promise – there can be “clear implication” over a number of years. This case reinforces this idea.

• Services provided went “beyond filial duty” and were “extraordinary and unusual”

Question 9

Key Points of law from Byrne v Bishop -> service

Answer 9

• Qualifying work or services can include intangible things eg. “Affection, companionship and support”
• the things done need to go beyond the normal expectations of family life or social interaction
• the motive of the person rendering the service is of little importance

Question 10

Key points of law from Byrne v Bishop -> promise

Answer 10

• the person seeking to enforce the promise, doesn’t have to be the person to whom the promise was made (estate being left to Byrne children)
  and
• the person seeking to enforce the promise doesn’t have to be aware of the promise during the lifetime of the deceased

Question 11

What does B v B say about nexus?

Answer 11

Nexus can be established even when the promise is only in part to reward for the services.

Question 12

What does Wilson v Wilson say about work and services?

Answer 12

The value that the promisor places on the services is important when considering if they count, and the duration of services is relevant, but not determinative.

Question 13

Key fact in W v W that gave rise to a testamentary promise:

Answer 13

Valmai Scott claimed that in the letter there was suggestion that Paula would benefit in the future. Took inferences from the context of the letter, as well as surrounding circumstances. An example of balance of probabilities - or a promise existing on the basis of light evidence.

Question 14

What does Wilson v Wilson say about a promise?

Answer 14

It must be one to make testamentary provision, and it must be reasonable to infer that the words give rise to a promise, and for testamentary provision.

Question 15

What does Chapman v P say about work/services

Answer 15

Work/services must go beyond what is reasonable for that PARTICULAR family.

Question 16

What does C v P say about a promise?

Answer 16

The intention of the promisor is more important that the motivation of the promisee.

Question 17

What does C v P say about a nexus?

Answer 17

The promisor must connect their promise to the work/services, and a promise founded on affection, and not reward for services, does not count.

Question 18

Jones v PT facts

Answer 18

• The deceased visited the plaintiff and his wife
• In his retirement, deceased paid for construction of a home in which they all lived together
• Plaintiff and his family paid no rent but provided meals and, in later years, “nursing services” to deceased
• Deceased made statements to the effect that plaintiff would receive the house upon deceased’s death
• Deceased ultimately made no testamentary provision for the plaintiff

Question 19

Re Greenfield key facts

Answer 19

• Plaintiff (deceased’s son) supported mother during marital troubles; purchased her fire-damaged house and assisted with its rebuild; and supported her during criminal proceedings for arson

• Deceased died in Australia without a will; under intestacy rules the estate passes to her spouse

• Plaintiff claims the whole of her estate on the basis of a testamentary promise

Question 20

Byrne v Bishop key facts

Answer 20

• Mr Byrne lived next door to the Bishops.
• They befriended him when they realised he was living in squalor following a surgery.
• He became effectively a member of their family, and promises the Bishop children his two farms upon his death.
• He did so in his will, but his will was revoked due to lack of testamentary capacity.
• The Byrne children appealed the decision to give the kids the farm
• Appeal was unsuccessful.

Question 21

Wilson v Wilson facts

Answer 21

Valmai Scott, Paula’s adopted mother provided information about Paula to her biological mother, and was under the impression that Paula would benefit in the future (via a letter Connie sent saying if she provided this information Paula would “benefit in the future”. Paula’s claim was successful, and she won $85,000

Question 22

Chapman v P + why it failed

Answer 22

Two children of the deceased claimed that he had promised them one of his properties as a result of them working for him in his many businesses. The claim failed, because the Court could not establish a sufficient nexus.
AND
Failed on the basis that services provided did not go beyond that of the typical familial relationships in that particular family

Question 23

Growden v Moreland + why unsuccessful

Answer 23

A stepdaughter completed work on the family farm, deceased said “that get’s read when I die” in context of inquiring about a will - claimant interpreted that as a promise.
-> claim was unsuccessful.

This case is an example of:
- Lacking connection to the alleged work/services (nexus)
Ex. of wording too vague to establish a promise