Search

Contracting to Make A Will or Bequest

In California, a person can enter into a contract to require that certain provisions (usually for property or other assets) will be inserted into their will or trust upon their death; the agreement may also be to not insert a particular provision, or to restrict or eliminate the person’s ability to revoke an existing will. This is commonly known as a “Will Contract” and is governed by section 21700 of the California Probate Code:


(a) A contract to make a will or devise or other instrument, or not to revoke a will or devise or other instrument, or to die intestate, if made after the effective date of this statute, can be established only by one of the following:

(1) Provisions of a will or other instrument stating the material provisions of the contract.

(2) An expressed reference in a will or other instrument to a contract and extrinsic evidence proving the terms of the contract.

(3) A writing signed by the decedent evidencing the contract.

(4) Clear and convincing evidence of an agreement between the decedent and the claimant or a promise by the decedent to the claimant that is enforceable in equity.

(5) Clear and convincing evidence of an agreement between the decedent and another person for the benefit of the claimant or a promise by the decedent to another person for the benefit of the claimant that is enforceable in equity.

(b) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

(c) A contract to make a will or devise or other instrument, or not to revoke a will or devise or other instrument, or to die intestate, if made prior to the effective date of this section, shall be construed under the law applicable to the contract prior to the effective date of this section.


Probate Code §21700 (2000).


In 2000, Section 21700 changed the law to confirm that written Will Contracts were valid under subsections (a)(1) to (a)(3), and also made it possible, under subsections (a)(4) and (a)(5), for oral Will Contracts to be established if there is “clear and convincing evidence.” (Id.).The “clear and convincing” standard of proof is higher than the usual one used in civil cases, and can make it more difficult to prove that there is a Will Contract in place, especially since one of the parties is deceased and the agreement may have been made several years or decades earlier. This change to the law in 2000 to also allow oral Will Contracts is a departure from most common interpretations of the Statute of Frauds, which is a legal principle that usually requires contracts for real property be in writing rather than oral. Please note: Probate Code section 150 (1983) and relevant court cases govern Will Contracts made prior to January 1, 2001 and requires that such agreements be written and signed by the person who made the will.


Once a valid Will Contract has been established pursuant to section 21700, it is generally treated like any other contract in California, including in terms of enforcement through “specific performance.” While it is true that courts generally prefer awarding monetary damages (the money value of a property or asset) rather than compelling specific performance (transfer of the actual property or asset) in a contracts case, they will order specific performance under certain circumstances (California Civil Code sections 3384-3395, Specific Performance of Obligations.). California specifically presumes that specific performance is appropriate in the case of transferring real property because such assets are unique enough that financial compensation is usually inadequate (California Civil Code, Section 3387.). This is especially true if the asset in question is a “single family dwelling which the party seeking performance intends to occupy,” because in such cases the presumption for specific performance is “conclusive.” (id.).



0 comments

Recent Posts

See All

A holographic will is very simply a document expressing testamentary intent written in the handwriting of the individual, or even more simply, it is a handwritten document that states what should be d

If you are a foreigner living in the United States that is creating a revocable trust as part of your estate plan, you will be faced with some difficult decisions, chief among them is who to appoint a