In general, individuals may dispose of their wealth and property as they choose and most courts strive to settle estates in accordance with the wishes of the deceased. There are, however, exceptions to this rule. One exception is when there is an enforceable promise to make a will that disposes of the property in a specified manner.
Contract to Make a Will
People sometimes promise to leave all or part of their estates to a particular person or persons. This is often called a "contract to make a will," but the promise may also be: to make a particular bequest; not revoke an existing will; or not make a will (so the property will pass to the heirs specified by law). There are numerous scenarios in which such a contract may arise, including:
- In connection with a divorce, as part of a property settlement agreement, the couple may agree in writing that one or the other will leave all or a portion of his or her estate to their children. A subsequent spouse may upset this plan.
- Couples who marry later in life may want to leave their respective property to their children from prior marriages, yet also allow the surviving spouse the right to use the property for life. They may therefore make one single or two "mutual" wills consistent with this plan. Sometimes the survivor of the two later changes the will to give the deceased spouse's property to others, breaking the promise.
- Persons who care for elderly parents, relatives, or friends frequently claim that they were promised all or a portion of that person's estate in return for services.
If it is discovered that the decedent failed to live up to the promise, there may or may not be anything the aggrieved parties can do, depending on the applicable law of that state.
State Laws
In 1969, a "Uniform Probate Code" was introduced (Uniform Code). Approximately one third of U.S. states have adopted some variation of the Uniform Code. In addition, most states have adopted provisions similar to those of the Uniform Code.
The Uniform Code and the laws of most states recognize the validity of contracts to make a will, and will enforce such contracts. Generally, the contract or promise can only be established by certain evidence, such as:
- Provisions in a will of the decedent (not necessarily the last will) that state the material provisions of the contract.
- Express provisions in a will or a contract, and/or other evidence that proves the terms of the contract.
- A writing signed by the deceased that evidences the contract.
However, the signing of a joint will or mutual wills by the deceased and another does not, in itself, create a presumption of a contract to make a will. In some states, Florida for example, the requirements for an enforceable will contract are similar to the requirements for a valid will; the contract must be in a writing signed by the deceased in the presence of witnesses. The person claiming the existence of the contract generally has the burden of proving its existence.
Enforceability of Oral Contract to Make a Will
In some states, an oral promise to make a will may be enforced. In one California case, a son supported his father financially and emotionally for thirty-five years based upon oral promises that he would receive property at his father's death. After the father committed suicide, the son discovered that the father's will and trust had been changed shortly before, eliminating the son as a beneficiary.
The court held that principles of fairness, or "equity," may prevent an estate from denying the existence of the oral contract, where the deceased benefited from the contract during his lifetime, i.e. the other person did what was promised. California law allows enforcement of a decedent's promise in such cases, if the contract is established by "clear and convincing evidence."
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