Litigation over testamentary promise claims against a deceased estate have strict time limits; fail to file within twelve months, then any claim will likely be timed out. Tim Swanwick’s claim to a family farm came fifteen years after his father’s death, but immediately after his mother’s subsequent death.
The Swanwick family farm at Maraetotara near Havelock North in Hawkes Bay was owned jointly by Tim’s parents. His father’s death in 2008 resulted in a new farming partnership established between his father’s estate and his mother. She died in 2021. A family dispute followed.
Tim’s siblings are three sisters. Their parents’ wills have all four children named as final beneficiaries of the farm, each with a one quarter interest.
Tim claims his father promised that the farm would be his on the death of both parents, provided he worked on and developed the property.
Law Reform (Testamentary Promises) Act allows ‘contract-like’ claims to be made against an estate where work has been done in return for promises that bequests will follow on death.
Whether any such promises were made to Tim are yet to be proved.
The first step has been procedural argument over whether he is out of time for a claim against his late father’s estate. There is no such dispute over his parallel testamentary promise claim against his late mother’s half share of the farm.
The general rule is that testamentary promise claims must be filed within twelve months of probate being issued. There is an exception. With court approval, a late claim can be made provided there has not been a ‘final distribution’ of estate assets.
Tim argued his late father’s estate was never finally distributed prior to his mother’s death. It was operating the farm in partnership with his mother.
The Court of Appeal ruled his father’s estate had been ‘distributed’ in that terms of his will had been put into effect. His will required that income from his half share of the farm go to his widow whilst she was alive.
Once a trust was initiated to create this life interest, assets had been ‘distributed’ as required by his father’s will, the Court ruled. Subsequent administrative requirements to have estate trustees correctly registered on title to the farm and to then later wind up the partnership on his mother’s death were not actions towards ‘final distribution;’ they were acts subsequent to distribution.
Tim cannot bring a testamentary promise claim against his late father’s estate, the Court ruled.
Swanwick v. Bostock – Court of Appeal (21.06.24)
24.159