Contracts to Make a Will
April 12, 2021
A will must be the result of a person’s free will. It must be signed voluntarily and not under threat or duress, or it could be deemed invalid, which issue is often the bread and butter of a typical probate litigator’s case work. However, a person may execute a contract during their lifetime to include certain terms and/or beneficiaries in their will, which is enforceable under Florida law.
To enforce a contract to make a will is more complicated than enforcing a regular, ordinary, everyday contract. With these types of contracts, it may be difficult to impossible to tell whether or not a testator complied with their part of the deal until their estate plan is revealed after his or her death.
Moreover, a will’s terms do not come into effect until death, so it is possible that there may not be a breach of the contract until a testator’s death.
Additionally, if you were supposed to be included in a testator’s estate plan but were not, you may not even receive the notice of administration when the testator’s estate is opened in the probate court.
The applicable Florida Statute is §732.701, which states:
(1) No agreement to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not to make a devise shall be binding or enforceable unless the agreement is in writing and signed by the agreeing party in the presence of two attesting witnesses. Such an agreement executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where the agreement was executed, whether or not the agreeing party is a Florida resident at the time of death.
(2) The execution of a joint will or mutual wills neither creates a presumption of a contract to make a will nor creates a presumption of a contract not to revoke the will or wills.
Based on this authority, to be enforceable, the agreement must be in writing and signed by the agreeing party in the presence of two witnesses. This is a considerably higher standard than what is necessary for a normal contract; essentially, the contract to make a will is required to have the same execution requirements as a will itself.
A will is changeable until a testator’s death. A competent testator’s ability to change, revoke, modify, or amend their will until their death is something that he or she maintains. However, if the testator signs a separate contract promising to never change, revoke, modify or amend that will, you may have a cause of action for breach of contract against the testator’s estate in which you may seek monetary damages.
The Second District Court of Appeal held in Boyle v. Schmitt, 602 So. 2d 665 (Fla. 3d DCA 1992), that “unlike a will which is clearly ambulatory in nature and therefore may readily be revoked by a competent testator, a contract to make a will may be irrevocable and therefore subject to specific enforcement by the court.” (further citation omitted). See also Donner v. Donner, 302 So. 2d 452 (Fla. 3d DCA 1974).
To enforce a contract to make a will, typically one would file a claim as a creditor in the testator’s probate estate and, if needed, bring a separate lawsuit for breach of contract, naming the estate, by and through the estate’s personal representative, as the defendant.
A contract to make a will may be repudiated or receded from as well during the lifetime of that testator – provided they give notice of that repudiation. Boyle, 602 So. 2d at 668. Keeping the contract to make a will a secret will not release the testator from their obligation under the agreement, so it would remain enforceable against him or her. Id.
It is possible to create an enforceable contract to make a will, but because of their strict requirements, you should be mindful that they may be more complicated to enforce than regular everyday contracts. Should you want to create a contract to make a will, already have one, or are involved in an estate in which you believe someone is trying to enforce one against an estate in which you have an interest, you should consult with a trusted probate attorney.