A will contract is a legal agreement in which the testator, the one who creates the will, promises to dispose of property in exchange for the other contractual party’s promise to perform or not perform a duty. Individuals can also make a will contract in which they agree not to draft a will or revoke an existing will. There are many people who may be interested in entering a will contract, such as heirs, engaged couples, and charitable organizations.
A will contract is enforceable in many jurisdictions, and the governing laws are often contract laws and not the law of wills. If a contract is not valid according to contract law or not enforceable in jurisdictions that do not recognize them, then the testator’s will is subject to inheritance laws and the regional will and trust laws.
The legal remedy for a will contract is often dissimilar to what is available in laws that govern wills and trusts. The contracting party can sue the testator’s estate for breach of contract, but the party may not be able to seek injunctive relief in probate court. For example, if a caretaker agreed to live with an individual and provide homemaking services in exchange for the testator’s promise to bequeath his house to that individual in a will and the testator does not leave the house to the caretaker, then the caretaker is often not able to get a probate court to transfer the house to her. The caretaker’s option in that case is to sue the estate for the value of the house based on contract law. This is the reason why some legal experts advise against entering into a will contract in the first place.
Like other forms of contract, a will contract must meet certain legal requirements for it to be valid. To begin with, both parties must give something of value or exchange promises to perform. For example, a husband can agree to bequeath property to his wife’s adult children from a previous marriage in exchange for the wife giving the husband a portion of stock shares that she owns and that are not considered common property. The parties must have mutual agreement in the contract and demonstrate the mental capacity to enter and sign the contract. Oral will contracts often pose a challenge in proving the existence of the contract and the intent of the parties, which is why some jurisdictions require that a will contract be in writing in order for it to be valid.
