CONTRACTS (TO MAKE A WILL OR DEVISE, OR TO NOT MAKE A WILL OR DEVISE)

Question 1

Requirements for a Contract to Not Revoke (or to Make a Will) Five alternative ways in California:

Answer 1

1. The will or other instrument (e.g. a trust) states the material provisions of the contract.
2. There is express reference in the Will or other instrument, such as a trust, to a contract
3. There is a writing signed by the decedent evidencing a contract.
4. There is clear and convincing evidence of an agreement between decedent and promisee that is enforceable in equity. (This is estoppel.)
5. There is clear and convincing evidence of an agreement between decedent and a third person for the benefit of the claimant that is enforceable in equity. (This is estoppel, too.)

Question 2

When the Cause of Action Accrues

Answer 2

General Rule: The COA accrues when the decedent dies

No cause of action arises at the time of breach
because a moment before decedent dies, decedent can execute a new will which would be in compliance with the contract. In such case, the promisee has no damages.

Question 3

Exception to the general rule:

Answer 3

The cause of action accrues during decedent’s lifetime if the decedent is engaging in conduct which would be a fraud on the promisee.

Question 4

Joint Will:

Answer 4

The Will of 2 or more people on 1 document

[a] The provisions do not have to be reciprocal.
[b] When the first person dies, the will is probated. When the second person dies, the will is probated again.

Question 5

Mutual Wills (also known as Reciprocal Wills):

Answer 5

The separate Wills of 2 or more people which are reciprocal

Question 6

Joint and Mutual Wills:

Answer 6

Reciprocal provisions on one instrument.

Question 7

Rule for Joint and Mutual Wills

Answer 7

1. The execution of a joint will, or mutual will, or a joint and mutual will does not create a presumption of a contract to not revoke or make a will.
2. But it may be evidence of a contract, in conjunction with other factors.

Question 8

Remedies Available to Promisee

Answer 8

1. Damages
2. Specific performance: plaintiff can seek to force the executor to comply with the terms of the contract.
3. Constructive trust remedy: the court can probate the will as it is, giving the property to the devisee, and make the devisee a constructive trustee, who will have only one obligation: to transfer the property to the promisee of the contract.