In the current social and legal climate, proving and executing the wills of individuals is extremely complex and the subject of much litigation. That is so, even when all of the terms and wishes of the maker of the will are on the face of the document itself. As far as the law is concerned, mayhem then ensues when there is a promise or other term that is asserted by another party, and that term or promise is not on the document itself.
The most obvious example of this is where the wills of two or more people are made in contemplation of each other’s will. Reserved in general for relationships of a domestic nature, this concept has evolved over hundreds of years.
The legal complexity stems from the fact that for a promise to be enforceable, it must meet certain criteria, such as being a valid contract, a promise that has been relied upon to someone’s detriment or a promise enforceable as a result of a statutory provision. So when it comes to a promise between two people about the distribution of their estate, very few of the above conditions can be met.
In almost all cases, the reason for judicial consideration of the enforceability of such a promise has only arisen because one or both of the parties has not kept the promise. A classic example occurs in Birmingham v Renfrew where a childless couple had promised to provide for each other’s relatives in the event of the other’s death. The wife was in the process of inheriting a large estate from a family member when she died first, leaving all the estate to her husband who had promised his will would provide for her family members. The husband changes his will several times after her death and when he died he left his estate to his own family.
The wife’s family successfully sued for enforcement of the promise and gave rise to some significant legal tools that are commonly used to resolve such disputes today. In this case it was the principal that if one party dies without revoking their will then the other party is bound to not revoke their will in consideration of the promise.
There is a tendency to discuss these issues from a contract law point of view, including promissory estoppel. While both areas do lend application to the circumstances and would ordinarily fit the facts, the law has grappled with the very specific nature of wills and attempted not impede the rights of people to create, change and revoke their wills. See for example the discussion on this contest
The preferred method in Australia has become the use of a constructive trust. That is, where assets have passed other than in accordance with the agreement, the law treats the holder of those assets as having received them construed (or stuck with) the original promise and is consequently liable to deliver them to the rightful beneficiary upon demand.
There are certainly many difficulties depending on whether parties die with or without revoking the promised will, whether or not another party had notice of any revocation; and of course the general nature of promises made between related parties and to what extent those promises are relied on. In many cases, the people who made the promises have long since passed and the attempted enforcement is being sought by people that neither gave or received any promise.
Restraint and caution is always advised in such circumstances because the resolution of these complicated disputes can be at the significant expense of the estate and often yields a counter-productive result.