A contract to make a Will is an estate planning tool that has fallen out of favor with the rise of the use of Trusts. For good reason. While a Will Contract is still legally enforceable, most people find the use of other tools more effective.
Will Contracts are exactly what they sound like: an agreement to provide for a person in your Will. How might they be used? Consider a husband and wife who want to provide housing for the benefit of an aging relative. This relative is a relation of the husband; he is older than his wife, and anticipates passing sooner. The husband thus may leave their home to the wife in his Will, and enter into a contract with his wife to ensure his mother will be taken care of during her lifetime. In the past, complex family situations often gave rise to Will Contracts.
Both California (Ca Prob Code § 21700) and Hawai’i (HI Rev Stat § 560:2-514) have statutes recognizing a contract to Will. The California statue allow for this contract to be oral or in writing. As one might imagine, the most frequently litigated cases relate to oral agreements, which can be difficult to prove. Moreover, under California law, a person seeking to enforce an oral contract to Will bears the additional burden of bringing forth “clear and convincing evidence” of the oral contract. This standard is much higher than the “preponderance of the evidence” standard used to prove most contracts.
Takeaway
Contracts to make a will can be difficult claims to prove and enforce. In addition to the statutory requirements, there are a myriad of legal issues that can stem from enforcement. If you are building your estate plan, discuss alternatives to the use of the Will Contract. If you are a party to a contract to Will, or seeking to oppose its enforcement, discussing the specific facts with a probate attorney can help you make an informed decision on how to proceed. Contact CASHMAN LAW today for a free consultation to see how we might help you understand your rights and options.
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