We often hear of situations where an individual gives an assurance along the lines of, ‘Don’t worry, I’ll leave you something in my Will’, but when that person passes away, their Will doesn’t reflect that promise. This can become an uncomfortable and emotional situation, especially if you’ve made life decisions based on that assurance.
Which begs the question — can a verbal promise really hold up against an estate?
The short answer: sometimes.
The real answer: it depends on the evidence and the circumstances.
When a Verbal Promise May Have Legal Effect
There are times when the law recognises a promise made by a person who has passed away, particularly when a person has relied on that promise to their detriment.
A well-known example of this is the case of Giumelli v Giumelli (1999) 196 CLR 101, where a son worked on his parents’ property for many years after being promised a share of the land. When that promise wasn’t kept, the Court stepped in and ordered that he receive compensation for the value of what he’d lost.
Cases like this demonstrate that the law doesn’t take broken promises lightly, particularly when someone has built their life around them.
The Legal Principle: Proprietary Estoppel
These types of claims are dealt with under the principle of proprietary estoppel.
In plain terms, the Court may stop an estate from going back on a promise if doing so would be unfair.
To succeed, the person making the claim generally must show:
- A clear promise or assurance was made;
- They relied on that promise (for example, by changing their work, financial, or living arrangements); and
- They suffered a loss, disadvantage, or made sacrifices because of that reliance.
The Court is ultimately asking: Is it fair to allow the estate to walk away from this promise?
The Challenge: Proving the Promise
Because most of these promises are not in writing, proof becomes the central issue.
Courts will look for any independent, reliable evidence, such as:
- Text messages, emails or letters
- Notes or diary entries
- Witnesses who heard or observed discussions
- Conduct that strongly reflects the promise made (e.g., someone working unpaid or below market value)
The Court must be satisfied about:
- What was promised
- How reliance occurred
- What disadvantage was suffered
Without supporting evidence, even genuine promises can be difficult to prove.
Why Seeking Legal Advice Early Matters
These disputes can become complex, and emotions often run high.
Early legal guidance can:
- Identify whether there is a viable claim
- Secure and preserve key evidence
- Engage with executors before disputes escalate
- Explore negotiation or mediation to avoid litigation where possible
- Taking advice early can prevent misunderstandings and unnecessary costs later.
A verbal promise can be legally enforceable — but only where there is clear evidence of the promise and genuine reliance resulting in disadvantage. Every case turns on its specific facts. If you believe you have relied on a promise that has not been honoured in a Will, it’s important to seek advice before taking any action.
The information provided in this article is general advice only. Given that each situation is unique, we recommend that you contact our wills and estates planning team if you have any questions about the information contained in this article. Our team can be contacted on (03) 9311 8911.
