If someone promises to include you in a will or estate plan, and do not for whatever reason, you generally have no legal recourse. An oral promise to take some future action is not, in and of itself, a legally binding commitment. However, if you have a written contract with someone regarding a future estate planning action, that may be enforceable in a California court. This is sometimes known a a “contract to make a will.” Like all contracts, there must be more than a unilateral promise: There must be an offer, acceptance, and consideration.
Handwritten Note Not Sufficient to Block New Will
Consider a recent California appeals court decision on this subject. This case is only an illustration and not a complete statement of California law. A father of five children signed a will in 2003. In 2004, following a dispute over the disposition of his late wife’s estate, three of the children met with their father, at which time he signed a handwritten document addressing the wife’s estate and further stating, “I am not revoking [my 2003 will] and the distribution to my children remain [sic] as written.” The 2003 will left the father’s estate to his five children in equal shares.
In 2006, the father signed a new will that favored one child over the others. After the father’s death in 2008, two of the children moved to probate the 2006. Another child objected, arguing the 2004 handwritten note constituted a binding legal agreement by the father not to revoke his 2003 will.
After several years of court proceedings, a probate judge ruled the 2003 note was not a valid contract and the objector child had no case. The California Court of Appeal concurred with the probate judge in a January 2016 opinion. As the appeals court explained, the father’s statement “I am not revoking [my will]” was in the present tense, meaning he would not revoke his will at that time. There was “no promise not to change his will or the distribution in the future,” the court said. Indeed, the objector herself apparently did not believe this was a valid contract at the time, as she later attempted to hire an attorney to draft a “legally binding” agreement.
Always Get Advice from an Estate Planning Lawyer
You should never enter into any agreement that may affect your will or trust without first speaking to a qualified California estate planning attorney. Contracts to make a will—or as proposed in the case above, contracts to not revoke a will—are uncommon, and while there may be exceptional circumstances where such an agreement may be useful, you should never commit yourself to one without independent, impartial legal advice.
That said, it is a good idea to periodically review your estate plan to reflect changes in your family situation and assets. Whether you are making a will for the first time or reviewing an estate plan that is several years old, contact the Law Office of Scott C. Soady in San Diego to speak with an attorney today.