It is no secret that certain promises made by a Deceased can, in some situations, be held to be enforceable, despite them not being explicitly detailed in their Will. These promises become of particular significance if you suspect, or are aware of, your partner’s infidelity.
The recent case of Ashton v Pratt   in the New South Wales Court of Appeal considered exactly this scenario. In it, the Court considered whether Mr Pratt’s mistress, Ms Ashton, could enforce a promise made by Mr Pratt for a trust account for her children, which was allegedly agreed upon as payment for providing her services as a mistress.
The Background of the Case
Between October 2003 and December 2004, Ms Ashton provided Mr Pratt with escort services. Over time, Mr Pratt requested that Ms Ashton provide her services to him ‘exclusively’ in return for a trust account containing $2.5m for her two children, a car and a number of allowances.
Fearing that he had promised far too much money, in February 2005, Mr Pratt’s associate, acting on his behalf, offered Ms Ashton the sum of $100,000 and a car in lieu of his previous promise, provided that she did not seek to contest his Estate or enforce his previous promise.
Ms Ashton agreed and both the money and ownership of the car was transferred. In November of that year she also signed a document acknowledging the receipt of the money and a full settlement of claims against Mr Pratt. Ms Ashton would later deny receiving the money at all, and would sue the Executor of Mr Pratt’s estate for the $2.5m trust account originally agreed upon. She argued that the original promise was a binding contract and thus should be upheld and paid out of his Estate.
The Court Weighs In
In examining the facts of this case, the New South Wales Court of Appeal made a number of findings. Ultimately, the Court held that the original $2.5m promise was not a binding agreement for a number of reasons:
1. The agreement was invalid, as enforcing it would go against public policy due to the immoral nature of the agreement;
2. There was no intention to create legal relations as the language used by Mr Pratt in the November 2003 promise was not ‘serious’ enough;
3. The terms of the agreement themselves were uncertain as they failed to outline each party’s obligations under the agreement; and
4. Even if the obligations in the agreement had been explicitly discussed or outlined, Mr Pratt would have been released by virtue of both the February 2005 $100,000 payment and the release signed by Ms Ashton in November of the same year.
While the Court found against Ms Ashton, this case sheds a significant amount of light on the dangers of promises to former or on-going extra-marital lovers. Enforcing promises made is far from new territory for Courts – this occurs on a near daily basis and so long as the basic requirements of a contract can be met, Courts may be forced to enforce them and provide for their enforcement out of the Deceased’s Estate.
This being said, current legislation in Victoria severely limits the category of person who can bring ‘strong’ claims, such as Family Provision claims, against a Deceased’s Estate. It seems safe to say that where there was an intention on the part of the Deceased to enter into a legally enforceable agreement, a Court will uphold it. This trend, however, does not mean that a Deceased’s mistress or lover will get an automatic entitlement to provision – particularly where their relationship cannot be described as one of ‘maintenance and support’.