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Broken promise to gift farm in Will a "cruel trick"

29 April 2016

Claims against a deceased person’s estate are not uncommon. A great number of these claims are made under the Family Protection Act 1955. Under that Act certain family members (often children) can challenge a Will on the basis that the deceased did not provide adequately for their proper maintenance and support. Another fruitful source of litigation is claims under the Law Reform (Testamentary Promises Act) 1949 (the TPA). Unlike the Family Protection Act, a claimant under the TPA does not have to be a family member.

The Law Reform (Testamentary Promises Act) 1949

The TPA enables a person to claim for payment of a reasonable amount where a deceased has not fulfilled a promise to compensate that person for services rendered or work done for the deceased while the deceased was alive.

The term “promise” under the TPA is given a liberal meaning. It may be express or implicit promise. It can include declarations or statements of present fact or intention. For example – “I intend to leave you my farm in my Will” may be sufficient. The promise can be made either before, during or after the services or work occur. It can be made to someone other than the intended beneficiary. A mere nodding of the head was enough for the Court to find a promise in one case.  “Work” and “services” have also been given liberal meanings. Services can include companionship, affection and emotional support exceeding what would normally be expected in the circumstances.

Ireland v Grant [2014] NZHC 1523

In this case, the Irelands received nothing under Mrs Osmand’s will. All of her estate was left to her daughter. Mr Ireland had lived with Mrs Osmand as a child and had been brought up by her. As a young man he followed his passion of motorcycle racing and went to Europe where he raced professionally for twelve years. While overseas he met and married Mrs Ireland (an Englishwoman) and had three daughters. At the request of Mrs Osmand, Mr Ireland and his family returned to New Zealand.

The promise

The Irelands claimed that they came back to New Zealand to live because Mrs Osmand had promised to leave them her farm when she died. Mrs Ireland commented in her evidence that she felt a cruel trick had been played on them when they found out that Mrs Osmand had left the whole of her estate to her daughter.

The Judge had to consider the conflicting evidence of family members, friends and acquaintances to decide whether such a promise had been made. In the end the Judge found a promise had been made to the Irelands. The Judge put considerable weight on the independent evidence of Mrs Osmand’s accountant of some 30 years. The fact that there was conflicting evidence from both sides as to whether a promise had or had not been made could be explained by evidence that Mrs Osmand conducted herself differently around different people, she criticised people behind their backs and she told one group one thing and another group the opposite.

The connection between the promise and the work and services

In respect of the work and services, the Judge found that the Irelands had contributed towards the building of a cottage on the farm and had provided other financial and emotional support. The support given was outside the bounds of normal familial support. The Judge had no difficulty in concluding that the work and services provided to Mrs Osmand was sufficiently linked with the promise made by her so as to provide the required clear nexus between them.

The outcome

The Judge stated his task was to achieve a fair and reasonable outcome by striking a balance between the promise Mrs Osmand made to the Irelands, her freedom to make her will as she saw fit and her daughter’s strong moral claim. He performed this task by making an order vesting 50% of the farm in the Irelands and the other half of the farm, as well as the rest of her estate, in Mrs Osmand’s daughter.

 

Please email me at barbara.mcdermott@nwm.co.nz with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.


Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.