Contracts in Wills

Question 1

Contracts to make wills

Answer 1

Generally, a contract to make, or not make, or not revoke a will is VALID

K is not a will and thus does not need to meet testamentary formalities and cannot be probated. But must be in WRITING under CA SoF

K law governs these issues

Question 2

Requirements to create a K to limit a will

Answer 2

(1) the will expressly states the material provisions of the contract;
(2) There is express reference in the will to the contract; (extrinsic evidence may be used to prove contents of K);
(3) There is a writing signed by the decedent evidence a K
(4) there is clear and convincing evidence of an agreement between decedent and promisee that is enforceable in equity (Estoppel, essentially)
(5) 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 (estoppel again)

Question 3

Cause of Action for K violations

Answer 3

CoA arises when the decedent dies

Does NOT arise at time of breach b/c decedent can potentially execute a new will which would be in compliance with the K

Question 4

Joint Will

Answer 4

Will of 2 or more people on one document

Provisions do not need to be reciprocal

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

Question 5

Mutual Wills

Answer 5

AKA reciprocal wills

Separate wills of two or more people, which are reciprocal (ex: husband leaves everything to wife, wife leaves everything to husband)

Question 6

rules regarding Joint and Mutual Wills

Answer 6

Execution of such a will DOES NOT create a presumption of a contract to not revoke or make a will, but it may be evidence of a contract in conjunction with other factors

Question 7

Remedies for Promisee in Will contracts

Answer 7

Damages; Specific performance; or constructive trust