When a person dies, their assets are most commonly dealt with in accordance with their will. But what happens when a person’s will doesn’t match the promises a person made during their life (known as “testamentary promises”)?
In Mills v Dodds [2025] NSWSC 396, the Supreme Court of New South Wales addressed a dispute concerning a testamentary promise.
Background:
After her sister received a terminal cancer diagnosis and had only a few months to live Ms. Mills moved interstate and provided care for her sister for approximately 10 months until her passing.
Mrs Mills asserted that her sister had promised to leave half of her estate to Mrs Mills. However, the sister did not amend her will to reflect this promise. Mrs Mills challenged her sister’s will in court.
Court Findings:
The court recognised that in New South Wales, testamentary promises can be enforceable under standard contract law principles. In other words, Mrs Mills needed to prove:
- Did the conversation between Mrs Mills and the deceased constitute an agreement?
- Were the terms of the agreement certain?
- Was there real consideration for the agreement?
- Was there an intention to create legal relations?
The court accepted Mrs Mills’ claim on each of those issues, finding that the promise made by the deceased constituted an agreement, that the agreement was sufficiently certain to be enforceable, that Mrs Mills provided consideration for the agreement by providing 10 months’ care to the deceased, and that Mrs Mills and the deceased intended to be bound by their respective promises.
In reaching that conclusion, the court carefully scrutinised the evidence of the witnesses and paid particular intention to the seriousness of the arrangement (including the deceased’s cancer diagnosis and the significant disruption to Mrs Mills’ life that was incurred by her moving interstate for a prolonged period).
The deceased’s failure to update her will was therefore a breach of contract and Mrs Mills was entitled to damages equal to 50% of the deceased’s estate.
Mills v Dodds is an excellent example that estate planning is not just about preparing a will. A person’s will can be affected by multiple issues, including but not limited to:
- Doubts as to capacity
- Undue influence and unconscionable conduct; and
- Testamentary promises
