If the deceased has promised to look after someone; breach of promise/contract and family provision claims

Date: Sep 28, 2011
Document Type: Article

If someone promises to take care of you financially and then they die, what do you do?

The legal issues can be especially difficult to resolve if someone is in a private relationship with the deceased. Some of these issues have arisen in relation to widely reported Court cases involving Shari-Lea Hitchcock , Madison Ashton and the Richard Pratt estate.

Sometimes the person to whom the promise has been made might bring a “family provision” claim. At other times the claim might be better characterised as a breach of contract.

What is the difference and which legal route should you take?

Family provision claims are made under the Succession Act. You must first establish that you are eligible to make a claim based on your relationship with the deceased (usually involving a domestic-type relationship of dependence), and then be able to show that you ought to have been provided for in the estate. The court will take into account a number of factors including the nature of your relationship with the deceased, any promise the deceased made to provide for you, what you did for the deceased, and your current financial situation. 

An action in contract is a civil claim. You will have to show that the deceased promised to provide for you, that you gave the deceased something of value in return, that the promise has been broken and that you have suffered loss as a result of that broken promise, or that the promise should be kept.

Which legal route you take will depend on your relationship with the deceased and the evidence that a promise was made to you.

If someone has promised to provide for you after their death and then failed to do so you may have a claim in contract or under the Succession Act – and you still might have a claim even if the deceased did not make a promise to look after you.

For advice from an experienced lawyer in this area contact Dominic Wilson on 8268 4000.

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