A woman was diagnosed with terminal cancer and promised her sister half her estate in exchange for her sister providing care to her during the final months of her life. However, after she died, it was discovered that the promise was not reflected in her Will, leading to a protracted legal dispute.
In Mills v Dodds [2025] NSWSC 396, the New South Wales Supreme Court demonstrated an instance where a verbal promise constituted an enforceable contract between the plaintiff and the deceased, even when it was not reflected in a testator’s Will.
Lynette Paton was diagnosed with terminal cancer and given months to live. During a telephone conversation in October 2020, Lynette promised her sister, Jennine Mills, that if she moved interstate to care for her during the final months of her life, she would receive half of her estate after her death.
Based on that promise, Jennine left her husband at home in Melbourne and moved to Port Macquarie in New South Wales, after spending 14 days in quarantine in Sydney, to care for her dying sister for approximately 10 months.
After Lynette’s death, Jennine realised that her sister had never updated her Will to reflect the promise she had made to her.
Instead, Lynette had appointed her close friend, Karen Ann Dodds, as executor of her estate and had only bequeathed $20,000 and any motor vehicle she had at the time of her death to Jennine.
Jennine then commenced proceedings on the basis that there was an enforceable contract between herself and the deceased and an alternative claim that equity should intervene to enforce the promise based on estoppel.
Karen also filed a crossclaim demanding that Jennine pay back a series of withdrawals she had made from the deceased’s bank account, totalling $81,799, in the days before her death.
The court had to determine whether an enforceable contract existed between the two sisters.
What followed was a protracted legal battle that His Honour, Justice Meek described as involving two main competing case theories being that of “revenge served cold by a duplicitous manipulating sister or a reconstructed memory contorting a mere expression of goodwill into a hoped-for inheritance.”
As of 8 December 2023, Lynette’s residuary estate had been calculated to total just over $1.05 million.
Testamentary contract vs equitable estoppel
Jennine’s legal team put forward two arguments to enforce the alleged broken promise: one of testamentary contract, and the other of equitable estoppel.
Testamentary Contract
The court needed to determine whether the sisters had formed a valid and enforceable contract.
For a testamentary contract to exist, several elements must be proven:
- Was the October 2020 phone conversation a genuine, clear agreement?
- Were the terms clear enough to be legally binding?
- Did both sisters provide something of value in exchange?
- Did they intend for the promise to be a serious, legally binding commitment?
The court found that all these elements were satisfied and made the following comments:
- The deceased had made a clear and unequivocal promise to the plaintiff during a telephone conversation in October 2020.
- The terms of the agreement were deemed sufficiently certain,
- The provision of care services for contractual purposes can constitute consideration
The plaintiff’s act of moving from Victoria to NSW, quarantining for two weeks, and providing care for the deceased constituted “legally sufficient” consideration.
Meek J held that the deceased’s promise constituted a valid testamentary contract. “The deceased’s failure prior to her death to make a codicil or new Will leaving Jennine half of her estate as promised constituted a breach of contract.” [517]. The plaintiff was entitled to damages equivalent to half of the residuary estate.
Equitable Estoppel
This legal principle enforces a promise when someone has acted to their detriment by reasonably relying on that promise.
[To read more about equitable estoppel, click here: https://attwoodmarshall.com.au/equitable-estoppel/]
Jennine needed to prove:
- Was there a clear and unequivocal promise?
- Was there a reasonable assumption of a particular legal relationship?
- Did Jennine act reasonably in reliance on the promise?
- Did the deceased know or intend that Jennine would act in reliance on the promise?
- Was Jennine’s reliance on the promise to her detriment?
- Did the deceased act unconscionably in not honouring the promise?
While the court found most elements of equitable estoppel were met, it determined that the best remedy lay in contract law.
The court’s decision
Justice Meek found that Lynette’s failure to include the promise in her Will constituted a clear breach of contract. The judge also relied on a conversation that Lynette had with her brother leading up to the promise, during which Lynette was gauging the likelihood of Jennine agreeing to come up and care for her in return for half of Lynette’s estate.
“The deceased’s failure prior to her death to make a codicil or new Will leaving Jennine half of her estate as promised constituted a breach of contract,” Justice Meek stated. “Prima facie, the damages are half the value of the deceased’s residuary estate.”
Critical lessons for estate planning
For anyone with a Will, this case provides several vital lessons.
The first is that all verbal promises should be put in writing. If you make changes to your estate plan, you need to update your Will or create a codicil to reflect your new wishes immediately.
Your Will should be a living document that reflects your current intentions – and it’s essential to properly document when those intentions change, perhaps because of new relationships, changed circumstances or, as in the case above, promises made during illness.
Being transparent and clear about your estate plans with affected family members is also key. Transparency goes a long way to reducing the likelihood of costly litigation.
Speaking from my experience as an estate litigator, I know that many estate disputes have the potential to turn very ugly in the courtroom – where, often, one side pits against the other and strong accusations are easily thrown around.
In this case, Jennine’s legal team argued that Lynette had deliberately deceived her sister, presenting herself as needing care while privately telling others she just wanted Jennine “up here to play with.” According to this theory, Lynette was settling an old score – she remained bitter that Jennine had left her to care for their sick mother alone years earlier.
The argument was part of Jennine’s case for equitable estoppel and was trying to prove unconscionable conduct. The manipulation allegations required extensive testimony from friends and family to determine Lynette’s true motives, to discover whether her conduct was a calculated deception or simply a dying woman wanting her sister’s care.
By the end of the proceedings, however, Jennine’s lawyers appeared to back away from their harshest accusations, softening their position and calling her conduct “a bit strange” rather than deliberately deceptive.
“There are some cases, including this one, where, in the long run, it is not possible nor necessary to pristinely reconcile all of the conflicting material in the case. Some aspects of this case remain a degree perplexing,” Justice Meek concluded.
Attwood Marshall Lawyers – experts in estate litigation
Estate disputes can be intricate legal battles that can be exacerbated by the heightened emotions of family members going through a difficult time. From the very beginning, you need skilled legal guidance to navigate the dispute process and settle matters quickly. An experienced lawyer can carry much of the weight of court proceedings while also minimising damage to family relationships.
For expert advice on your rights in estate disputes, please get in touch with our Estate Litigation Department Manager, Georgia Trapp on direct line 0498 499 122, email gtrapp@attwoodmarshall.com.au or free call 1800 621 071 any time.
Estate conflicts can be significantly reduced, or prevented entirely, when people have a legally sound Will that names an executor and provides unambiguous directions for distributing their assets after death.
For all your estate planning needs, please contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 anytime.
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