Contracts to Make Wills

Contracts to make wills can take numerous forms. The most common types of contracts related to wills are:

• A contract to make a gift by will;
• Joint or mutual wills that may or may not be contractual;
• A contract not to revoke a will or a provision included in the will; and
• A contract not to make a will at all.

The key to remember in answering questions in this area is that contract law rather than wills law governs the outcome of many disputes. Additionally, the contract associated with the will is separate from the will itself. The will is valid and may be probated, provided it was executed with the requisite formalities, even if its execution was in breach of contract.

For the contract to be valid there must be an offer, acceptance and consideration and the parties must have the capacity to contract. If the contract is valid, the usual contract remedies are available to resolve those problems. Often, a constructive trust is created for the benefit of the promisee.

EXAMPLE: Marshall promises to make a will that devises his home to his niece, Whitney, if she will move in with him and take care of his three kids. Whitney performs her part of the bargain, but Marshall dies without having made such a will. This breach will be litigated as a contract problem governed by contract law, not by the law of wills. Unfortunately, Whitney cannot go to probate court and ask for the home. Rather, she may pursue a remedy for breach of the contract.

Whether this contract must be in writing differs among different states. The variations range from merely a writing signed by the promisor (sometimes also signed by two witnesses) to a specific reference to the contract in the will, including a statement of the material provisions of the contract. See, e.g., N.Y. Est. Powers & Trusts Law § 13-2.1; Tex. Prob. Code § 59A.

If the contract involves real property, however, the Statute of Frauds applies because the promise is treated as a contract for the sale of land and there must be a written document memorializing the agreement. See, e.g., Rape v. Lyerly, 215 S.E.2d 737 (N.C. 1975).

A joint will is a single document executed by two (or more) testators as their will. As each party dies, the will is probated as his or her will. See, e.g., Olive v. Briggs, 173 S.E.2d 301 (N.C. 1970).

Example: Jay and his wife, Betsy, execute a joint will providing that the estate of the first to die should go to the survivor. On the survivor’s death the estate is to go to a named beneficiary, Carmen. Betsy dies and Jay inherits the estate. Subsequently, Jay marries Ana and executes a new will naming Ana as sole beneficiary. When Jay dies, both Carmen and Ana make a claim for the estate. The court held for Carmen, stating that Jay and Betsy intended to make their joint will irrevocable. As such, Jay received only a power to use the assets during his life and had no devisable property interest for Ana to inherit. In addition, the nature of Jay’s interest was such that Ana had no right of election as a widow. See, e.g., Rubenstein v. Mueller, 225 N.E.2d 540 (N.Y. 1967).

Despite cases such as this, there is no general presumption that joint wills also include a contract between the testators not to revoke the will. Rather, either testator may revoke his will at any time, unless they have specifically contracted not to do so. See, e.g., Magids v. American Title Insurance Co., 473 S.W.2d 460 (Tex. 1971).

Some jurisdictions take a contrary view of the existence of a contract not to revoke the will as part of a joint will. When evaluating the language of the wills, these courts look at whether the testators used plural possessive pronouns to make a joint disposition of all of their collective properties. They see this usage as evidence that the testators were in agreement as to the permanence of these wills. See, e.g., Nye v. Bradford, 193 S.W.2d 165 (Tex. 1946).

Mutual wills are separate wills of two (or more) people which contain similar or reciprocal provisions.

EXAMPLE: Gina and her husband, Alfredo, execute their wills as separate documents. Most of the provisions are the same in the two documents and each person gives the other all of his or her property. These would be mutual wills. Whoever dies first, that person’s will would be probated and his or her property would be distributed to the other.

Even the execution of mutual wills containing identical provisions, drafted by the same attorney and executed on the same day, does not constitute definitive evidence that the testators intended that the wills were to be contractual. See, e.g., Proctor v. Handke, 452 N.E.2d 742 (Ill. 1983); Plemmons v. Pembertorn, 139 S.W.2d 910 (Mo. 1940).

EXAMPLE: Nicholas has four children, two by his first wife and two by his second wife, Megan. Nicholas and Megan execute wills at the same time. Each will provides; (1) that the residuary estate is to go to the spouse; and (2) that if the spouse fails to survive, the property is to go to Nicholas’s four children. Nicholas dies first and Megan makes a new will that leaves all of her property to her own two children only. Nicholas’s children from his first marriage seek to obtain their share of the property. The court held for Megan, stating that there was insufficient proof to establish the existence of an actual promise by Megan that she would not change her will after Nicholas’s death. As such, she is free to distribute the assets of her estate as she sees fit. See, e.g., Oursler v. Arrmstrong, 179 N.E.2d 489 (N.Y. 1961).

Although rare, one can promise to die intestate (i.e., not to make a will). Such agreements are not against public policy, and thus they are enforceable if supported by consideration. See, e.g., Roberts v. Conley, 626 S.W. 634 (Ky. 1981).

In the next chapter we will continue our study of wills, focusing on their construction and interpretation.