Contract to Make a Will

Every so often, a battle breaks out between someone who claims entitlement to assets of a decedent based on a claimed agreement with the decedent to leave them assets in the decedent’s Will. Some of those claims succeed while others fail. 

A previous column explained thata promise to make any gift, even one a death, is generally unenforceable. A gift requires present donative intent, delivery to the intended recipient and acceptance by the recipient. Promise to make a gift in a Will does not get past the last two requirements for a valid gift. The gift in a Will is only delivered and accepted if the decedent actually includes the gift in the Will. 

That means lawsuits over promises to make a Will are based on a claimed contract were provided in exchange. Most often, the claimant is arguing services provided to the decedent for an agreement to make a Will. The claimant must establish an agreement that meets all elements of a contract. Those elements are an offer, an acceptance of the offer and consideration for performance. Establishing a contract requires more than proving a simple promise. 

These cases almost always argue whether something of value (consideration) was given to the  decedent in exchange for the decedent making a Will to benefit the claimant. The claimant frequently argues that he or she provided services to the decedent in exchange for the agreement to make a Will. When the claimant paid for the services rendered during the decedent’s life, the claim is weakened but not necessarily extinguished. It is a question of fact whether or not the circumstances evidence reasonable value given in exchange. 

Services are not the only consideration given for promise to make a Will. In some cases, two people agree to make Wills including certain provisions. That most commonly involves a second marriage where there are children from both spouses that are not common to them and the parties agree that they will both have Wills leaving assets to all of the children.  

Florida does not recognize oral Wills and by statute follows the same rule for agreements to make a Will entered after January 1, 1958. The agreement must not only be in writing but also attested by two signing witnesses. There is an exception for agreements entered by decedent’s who were not Florida residents at time the agreement was entered. If a non-Florida resident enters an agreement in another state that is valid under the laws of that state, it is enforceable in Florida even if that person moves to Florida after the agreement is entered. 

If a decedent failed to make an agreed Will, the claimant must pursue the claim just as any other creditor of the decedent who was not paid before the decedent died. The claimant must pursue the claim against the decedent’s estate in probate. The claimant must file a claim just as any other creditor and is subject to deadlines for filing claims, including the Florida statute barring claims not filed in probate within two years of a decedent’s death. 

A lot of people utilize a revocable trust to avoid probate altogether. By placing assets in a trust, the assets are owned by the trust when the decedent dies,and probate is not required to transfer ownership. What happens then? 

Any interested party can open probate and assets in a revocable trust are available to pay creditors of the decedent filing claims in a probate action. Few creditors go to the trouble and expense of opening probate in the hope they will get paid. That is especially true when there could be multiple creditors and any assets of an estate split among them. 

Unlike most creditors, a person claiming an agreement to make a Will is usually generally knowledgeable of the decedent’s assets and if that person is aware that the decedent had wealth, the likelihood the claimant opening probate so the claim can be pursued increases substantially. That would be especially true if the agreement was to leave the claimant a lot of money. 

Even if successful in a lawsuit to enforce agreement to make a Will, a claimant might be left unsatisfied. The successful litigant would be placed in the position he or she would hold if the decedent died with the proposed Will. If the decedent also died with lots of creditors and even numerous other beneficiaries, distribution to the claimant could be little or none. The claimant does not get the monetary equivalent of the gift that the decedent promised, but only status as a beneficiary of the Will that was supposed to be made. 

A claimant may not have to wait until someone dies to take action to enforce an agreement to make a Will. In the case of Kelsey v. Pewthers, the Pewthers had a written contract to provide services to Kelsey in exchange for Kelsey’s agreement to give them all of Kelsey’s property at Kelsey’s death, subject to 10% as a life-income for Kelsey’s daughter. Kelsey unilaterally terminated the contract after 16 months and the Pewthers sued.  

The court explained that enforcement of the agreement did not have to wait until Kelsey died. The Pewthers could sue Kelsey for the reasonable value of their services. The Pewthers could alternatively sue for imposition of a constructive trust on Kelsey’s property which would allow Kelsey unrestricted use of the property during her lifetime but provide for the transfer of those assets at her death to the Pewthers. 

Florida’s statutory mandate that these agreements be in writing was a welcome effort to bring some order to this area. The statute did not end litigation involving these claims.