Contracts to Create a Will
A last will and testament must be the consequence of a person’s free will (which is why they are aptly referred to as “wills”). Nevertheless, a person may execute a contract during life to include certain terms and/or beneficiaries in their will in exchange for goods or services.
Enforcing a contract to create a will is more complex than enforcing a normal contract. With these types of agreements, it may be impossible to tell whether the testator lived up to his or her side of the bargain until their estate plan is revealed after their death. Additionally, the terms of a will do not come into effect until death, so there may not technically be a breach of the contract until the decedent’s death. Further, if you were supposed to be a part of the decedent’s estate plan, but were not included, it’s possible you may never even receive notice regarding the administration of the decedent’s estate.
In Florida, Fla. Stat. § 732.701 controls these types of agreements. In essence, it states that to be enforceable, the agreement must be in writing and signed by the agreeing party in the presence of two attesting witnesses. Notably, this is a significantly higher standard than what is necessary for a normal contract.
While these agreements are closely related to wills, they are governed by contract law and considered completely separate entities from wills. A will can be valid even if its execution clearly violates the terms of a contract. The correct procedure to enforce this type of agreement would be to file a claim as a creditor in the probate estate and, if necessary, bring a separate suit in circuit court against the deceased’s estate for breach of contract.
In sum, it is possible to create an enforceable contract to create a will. However, these contracts have more stringent requirements than normal contracts, and they are naturally more complicated to enforce than normal contracts.
If you have a contract to make a will against an estate, or if you believe someone is trying to enforce a fraudulent contract to make a will against an estate you have an interest in, do not hesitate to contact the experienced attorneys of Chepenik Trushin LLP, Bart Chepenik, 305-613-3548 and Brad Trushin, 305-981-8889, who are ready, willing, and able to assist you with your estate planning, guardianship and probate litigation needs.