TWELFTH CONCEPT: CONTRACTS (TO MAKE A WILL OR DEVISE, OR TO NOT MAKE A WILL OR DEVISE)

Question 1

Testator executes a will that states, “I leave Blackacre to Abel.” Can testator revoke the gift and execute another will leaving Blackacre to Baker?

Answer 1

Yes because wills can be changed they are ambulatory.

Question 2

Testator executes a will that states, “I leave Blackacre to Abel.” There is a contract between testator and Able providing that testator will not revoke his will. Can testator revoke the gift and execute another will leaving Blackacre to Baker?

Answer 2

In such case, if testator revokes, testator is in breach of contract and, upon testator’s death, Abel may sue testator’s estate for breach of contract.

Question 3

If the will or other instrument states the material provisions of the contract, will that satisfy the requirements for a contract to not revoke (or to Make a Will)?

Answer 3

yes, e.g. T’s will states “In consideration of the $5000 Abel has given me, I have promised to devise Blackacre to Abel, and I hereby do devise Blackacre to Abel.

Question 4

if there is express reference in the will or other instrument to a contract, will that satisfy the requirements for a contract to not revoke (or to Make a Will)?

Answer 4

Yes

Question 5

if there is a writing signed by the decedent evidencing a contract will that satisfy the requirements for a contract to not revoke (or to Make a Will)?

Answer 5

Yes

Question 6

If there is clear and convincing evidence of an agreement between decedent and promisee that is enforceable in equity will that satisfy the requirements for a contract to not revoke (or to Make a Will)?

Answer 6

Yes

Question 7

If 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 will that satisfy the requirements for a contract to not revoke (or to Make a Will)?

Answer 7

Yes

Question 8

When does the cause of cation accrue? (general rule)

Answer 8

The cause of action accrues when decedent dies

Question 9

Under what situation does the cause of action accrue during the persons lifetime?

Answer 9

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 10

Testator enters into a contract with Abel to devise

Blackacre to Abel. Thereafter, testator prepares to sell Blackacre with the intent to dissipate the funds. What result?

Answer 10

Abel may be able to secure an injunction to either prevent the sale of the property or, failing that, to enjoin testator from dissipating the funds from the sale.

Question 11

What is a joint will?

Answer 11

The will of two or more people on one docuement

Question 12

When is the joint will probated?

Answer 12

When the first person dies, the will is probated. When the second person dies, the will is probated again.

Question 13

Does a joint will need to be reciprocal?

Answer 13

No

Question 14

What is a mutual will?

Answer 14

The separate wills of two or more people which are reciprocal

Question 15

Does the execution of a joint will, or mutual will, or a joint and mutual create a presumption of a contract to not revoke or make a will?

Answer 15

No. But it may be evidence of a contract, in conjunction with other factors.

Question 16

What are the remedies available to the promisee?

Answer 16

Damages: P can sue decedent’s estate for damages.
Specific performance: plaintiff can seek to force the executor to comply with the terms of the contract.
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.