Contracts to Make a will

Sometimes I am contacted by potential clients who are upset about how a will was drafted; and they want to challenge it on the basis that the person who died had made a promise at some point to leave a particular property, or share, or money, to them or to someone else.

What they are usually talking about is a “contract to make a will”. Understand, this is somewhat different than challenging a will based on how it was drafted, which I discuss here:

How To Contest a Will in Florida

This challenge is saying, basically, not that there was anything wrong with the way that the will was drafted, but that the will was not what the person promised.

Florida’s statute on agreements to make a will is here:

FS 732.701

It essentially provides that in order to be enforceable, a promise to make a will must be in writing, and signed with the formalities of a will, i.e., that it must be signed by the person making the promise, and signed by two witnesses, and that the witnesses must sign in the presence of each other and the person making the promise.

There is an exception for contracts to make a will that were entered into by someone who was not a Florida resident at the time they made the promise; basically Florida will look to the law of the state they were residents in at the time; this usually applies to out of state prenuptial agreements, but theoretically could apply to other types of contracts to make a will.

Nonetheless, generally, in Florida, if you want to enforce a contract to make a will, usually that contract must be in writing, signed by the person making the promise, and signed by two witnesses who signed in front of each other and the person making the promise. Understand this is a very high standard; very few letters, notes, or casual agreements will meet this standard. In fact, in 15 years of law practice, the only time I have seen this was in a case involving a divorce agreement; the soon to be ex-husband had agreed to leave something to the soon to be ex-wife; it was signed by him, and was witnessed by the his lawyer and his wife’s lawyer. That agreement would be enforceable.

Which leads me to my next point: what can be done if you have an enforceable agreement to make a will? Frequently, clients, and sometimes even lawyers, will try to intervene, or participate, in the probate proceeding; they will object to the probate of the will, or try to get a judge to ‘reform’ or change the terms of the will. While that may seem the logical thing to do, it is absolutely incorrect. As this case discusses

Johnson v. Girtman

What needs to be done is to file a claim in the probate case, and if necessary, litigate the claim in an independent action in Circuit Court. Typically, you seek damages; you may be able to seek specific performance as in the case above. If the claim is not objected to, or if you prevail in your lawsuit against the estate, then you stand as a judgment creditor against the estate. The estate owes you money or owes you a certain type of performance, i.e., transferring a specific piece of realty to you. Unfortunately, even if you are judgment creditor of the estate, your judgment is enforceable only against estate assets; and only those assets that are not exempt; i.e., if the decedents home passes either by intestacy or by will to either a spouse or ‘protected heirs’, the homestead cannot be sold to satisfy your judgment. Likewise, certain other property is considered exempt in Florida, that is unavailable to satisfy creditors; this property can include household goods and furnishings up to $20,000 in value, and in some circumstances, all motor vehicles owned by the person who died. Understand that normally, a contract to make a will is not binding on someone, particularly a spouse, who did not sign the contract; as this case notes

Via v. Putnam

the ‘new’ spouses rights took precedence over the rights of the children under their mother’s will.

If the property that is the subject of the contract is not in the estate at the time of probate, then you would have to file a suit against the person who received the property;

Boyle v. Schmitt

however, bear in mind that this case dealt with an allegation of fraud; i.e., that the testator transferred the property to defeat the contract to make a will. If, on the other hand, the property is simply not in the estate because the decedent sold the property for value and spent the money, you probably are not going to be able to recover the property.

The point is, if you have a question about someone who agreed to make a will leaving you something, you need to talk to lawyer; and you probably need to talk to them promptly; your failure to take immediate action could prejudice your rights. If you have questions regarding will contracts in or around The Villages, Florida, feel free to contact my office.

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