Contract to Make a Will

I have stated previously that it doesn’t matter what a decedent’s intent was at the time of their death, instead, it only matters what their Will/Trust says as properly executed testamentary documents trumps almost everything. This is true, however, one of the rare exceptions is contract to make a Will.

A contract to make a Will claim does not invalidate a testamentary instrument, but it does take priority over a properly executed document.

A contract to make a Will is exactly what it sounds like. You contract with someone to do some sort of act to benefit them, and in exchange they promise to put you in their Will. It might be a specific gift of $5 or it could be a promise to make you sole beneficiary.

However, many times people make that promise but fail to put you in their Will, even if you have adequately performed your promised action. If this occurs you can file a creditor’s claim against the estate requesting quasi-specific performance of the contract, namely to give you the specific property that the decedent promised you but failed to provide.

The most common example of this occurring is when spouses make promises to make mutual Wills, but one fails to do so. That is what happened in Brewer v. Simpson.

However, to prove a Contract to make a Will claim is difficult. Under Probate Code section 21700 you must show one of the following:

• The decedent’s Will contained the material provisions of the contract;
• The decedent’s Will makes an expressed reference to your contract and you have evidence proving the terms of the contract;
• The decedent signed a document evidencing the contract; or
• The decedent had an agreement with you proven through clear and convincing evidence.

The first three ways are unlikely as most contracts to make a Will are done without any sort of memorializing documents. Therefore, most plaintiffs must pursue the claim using clear and convincing evidence. However, this is a heavy burden and is an elevated standard from preponderance of the evidence. As a result, you would need a lot of circumstantial evidence indicating that you had an agreement.

This could be documentation that shows you performed activities for the decedent that you would not have done under the normal course of your relationship with the decedent. You could provide multiple (and preferably disinterested) witnesses that heard the decedent either talk about the contract or heard you forming the contract. While this list is non-exhaustive, it is the most likely evidence you will have in proving the existence of the contract.