ORAL PROMISES MADE BY A DECEASED TO LEAVE ASSETS TO A CARER AND ITS ENFORCIBILITY IF NOT PROVIDED IN WRITING - November 2010

Author: Gerard Malouf

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Often people make promises that they do not keep. Generally if a person promises
to leave you something in their Will but doesn’t, this in it self is not usually
enforceable.

However, there are certain occasions and the situations have arisen in cases that we
have successfully won against an Estate where the Court of Equity will uphold and
prevent a person from breaking their oral promise about leaving assets once they
die. A recent case Delaforce –v- Simpson-Cook 2010 NSW Court of Appeal 84 is a
good example where the doctrine of promissory estoppel permitted the enforcement
of an oral promise made by an Executor (the person that died) becoming
enforceable by the person to whom he promised the asset. In this case the
deceased during his life time to a former wife made a promise that he would leave
certain property, by way of a property settlement, in his Will. The fact that the
property settlement involved the deceased leaving part of his estate in his Will to the
former wife irrespective of whether the deceased changed his Will, no longer leaving
the asset to his former wife was not relevant. The fact is the former wife was entitled
to a proprietary estoppel on the basis that the deceased had previously encouraged
his former wife to forego certain property family law settlement interests on the basis
that she would be left something out of his Will. The wife in reliance of this
expectation as provided by the deceased, would have changed her position to her
detriment when the Family Law settlement occurred. Equity compelled the estate of
the deceased to honour the oral promise made by the deceased.

For instance if as a carer you do unpaid work for a person who states words to the
effect “because you are doing this I will leave you something in my Will” and
specifies some specific portion, arguably you might be able to claim based on this
broken promise at equity. You would have suffered a loss and you would be entitled
to an estoppel by “encouragement”. This occurs where the Statement is more than
just a mere statement but is in fact tantamount to a promise. The law states “the
detriment that makes an estoppel (promise) enforceable is that which the party
asserting the estoppel (promise) would suffer as a result of his or her original change
of position if the assumption upon which it was introduced was terminated.

FAMILY PROVISIONS ACT CLAIM

In the aforementioned case of Delaforce the Plaintiff, the former spouse, made a
further claim under the Family Provisions Act, now known as the Succession Act,
alleging that notwithstanding the fact that she had received a property settlement,
she was entitled to enforce certain oral promises about receiving additional money
on the basis that the overall amount that she was left was inadequate considering
the large size of this estate worth in the vicinity of 4 million dollars.

The Court of Appeal where this matter was ultimately decided came to the view that
the former wife in light of her contributions and relationship during the marriage were
adequately taken into account in the Family Law property settlement that occurred
some years earlier. Essentially the former wife did not satisfy the test for ongoing
financial needs either by way of maintenance, education or advancement in life as
required under the Family Provisions Act. However, the fact remains that Carers or
people promised money/assets by a deceased who do actions for the benefit of the
deceased over a period of tie may have a right to challenge a Will where they are not
included.

Get Good Legal Advice

Contact GMP Contested Wills Lawyers to book a free first consultation. At the first consultation we will discuss with you in a professional friendly manner the details of your situation and advise you if and how you should proceed.