It is not uncommon that, when an elderly person enters an increasingly frail stage of their life that family and friends may step up to offer help. Sometimes it is a member of the wider family, an estranged child, a neighbour or a good friend.
On the death of that elderly person, the question may be asked – should the helper be rewarded or recognised for all the work they had done?
This can become really difficult. For example, the elderly person might have given hints to the helper that they would “see them right” – or perhaps the helper had a secret hope that they might be recognised later, under the will. It can be an awkward and difficult topic for either party to talk about and often this is not discussed directly at all. Confusion and disappointment tend to follow, especially where the helper has made great personal sacrifices of time and energy to help. Generally it’s out of “the goodness of our hearts” that we do this and we don’t expect reward or recognition if we do it. However, sometimes this issue does come up.
This is an area where the Courts may be asked to step in to determine where the line is drawn between work that a close friend or loving family member did without expectation of recognition or reward, and work that a person has carried out because of a promise made by the deceased. NZ’s statutes do, to a limited degree, “help the helpers”, where a promise has been made. If the elderly person made a promise to reward someone in their will, this is called a “testamentary promise” and there are special rules about what needs to be proved. It is not easy or straight forward. But perhaps this is deliberate, so there are no spurious post-death claims, from undeserving people?
Contesting an estate is not an area we recommend people tackle on their own – the law is complicated and there are time-frames and specific requirements that must be complied with before a claim against an estate can be entertained by the Courts. This is where our Life Law team becomes involved.
For the elderly person organising their affairs – we can advise on their specific situation and draft an appropriate will to suit and give the recognition that they wish to provide. The Courts will look want to look at this will-making process between the lawyer and their client if a claim against an estate, to try and determine the background behind any changes (or lack there of) to their will.
For the helper wanting to make a claim, where the deceased did not appropriately record the agreement between them – we can check out if a sufficient promise was made, and guide you through the process of making a claim based on that.
