AGREEMENTS TO MAKE A WILL / RECIPROCAL WILLS

What if you want to leave everything to your spouse, but only if they do the same? Agreements to draft a will in such a way (or to not draft a will) are not always honored or successful. This blog will cover the requirements of making valid contracts regarding wills.

Unless in writing, an agreement to make a will is generally invalid. This means that Aunt Betty’s passing comment that she would leave you that very large diamond ring you like so much, is generally not enforceable. That said, the probate court may have some authority to enforce an oral agreement if “unconscionable injury” will be done, or if the party failing to uphold the agreement is unjustly enriched.

The first thing to keep in mind is that agreements are not enforceable contracts unless there is “consideration,” meaning, both parties are somehow benefiting from the agreement. So even if Aunt Betty sends you a signed letter promising to leave you that ring, you can’t enforce that promise unless Aunt Betty gets something out of it.

You must be able to prove the contract’s existence, and its terms. A contract to make or revoke a will or other instrument, or to die intestate, can only be proven by one of the following (note that this applies only to agreements made after 2000):

  1. A writing signed by the decedent which evidences the agreement;
  2. Provisions of a will or other document which set forth the material provisions of the contract;
  3. “Clear and convincing evidence” of the agreement or promise, which is enforceable in equity;
  4. An expressed reference in a will or other document to the contract, and extrinsic evidence proving the terms of the contract; or
  5. “Clear and convincing evidence” of the agreement for the benefit of the claimant, and which is enforceable in equity.

Note that the execution of a joint will or mutual wills does NOT create a presumption of a contract not to revoke the will or wills. Also, knowing someone has executed a will other than what they agreed to will not get you into Probate Court - such a contract cannot be enforced until after the promisor’s death.