The Enforceability of Pre-Death Promises to Alter or Change Wills

Oftentimes, when people get older and they need help, they don’t have immediate funds or assets to pay other people for the help that they need. But they do know that they have assets that they can leave in their estate plan.

So, as compensation or as a thank you, or as consideration for some agreement, someone may promise someone else that they will be included in a will, or otherwise left property from that person’s estate, when they pass.

But then when they do pass, the person who was promised things from the estate (the promise), is left with nothing. This can lead to a challenge in probate court.

Are Verbal Promises to Change Wills Enforceable?

On the one hand, you have a fully and properly executed will or trust or other estate planning document, that leaves nothing to the promisee. On the other hand, you have a promise saying that he or she was verbally promised they would get something for services provided. This often leads to challenges in probate court.

Verbal contracts are real binding contracts and are legally enforceable. The problem is that when you’re talking about leaving something to someone in a will, that isn’t a contract—it’s a will, with special legal formalities set out by statute that must be followed.

Telling anybody “I’m leaving my property to you,” doesn’t create a will—certainly not in the face of an otherwise validly executed will that contradicts the terms of that oral promise to leave something to someone in a will.

This also applies to verbal promises to alter, amend or revoke a will. Imagine a family member is told repeatedly by someone “I’m changing my will to leave this property to you, instead of to your brother.” Then when that person dies, the will is not changed at all. The verbal promise to alter the will is likely not enforceable in probate court.

Verbal Contracts Can be Enforced

All of this only applies where the promise by the deceased was to leave something to the promisee, in a will. Verbal promises between the deceased and the promisee, that were breached or unfulfilled by the deceased, can still be enforced by the promisee by filing a claim as a creditor in the probate court.

Some Challenges are Allowed

Someone additionally can claim that the deceased was not of sound mind when the will was made, and that had he or she been of sound mind, that the promisee would have received something. But that has nothing to do with the enforceability of a verbal contract, it has to do with the deceased’s mental capacity to make a will in the first place.

Additionally, two people who stand to inherit property can, between themselves, make a verbal promise to sell, share or transfer assets to one another.

So, for example, if Brother 1 and Brother 2 agreed that once they inherit the business from sick, dying dad, that Brother 1 will sell the business to Brother 2, that promise may still be enforceable—but that becomes a simple breach of contract case, not a probate or will challenge case.

Call the West Palm Beach probate lawyers at The Law Offices of Larry E. Bray today for help if you have a probate court challenge or problem.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.502.html