A Client's mother died intestate leaving valuable real property in her estate. A friend of the deceased mother brought a claim under the theory of a contract to make a will and claimed that the decedent had promised to leave the property to the friend. The mother's friend also tried to probate a will which purportedly left a fractional interest in the real property to the friend.  We commenced a will contest on the grounds of lack of due execution, and disqualification of the friend pursuant to Probate Code Section 21350.  Ultimately, the purported will was found to be invalid due to lack of due execution.

Other than this invalid will, there was no written document evidencing the claimed contract to make a will.  The friend attempted to offer into evidence documentation pertaining to a failed LLC involving the real property.  However, this LLC agreement did not expressly mention a contract to make will.

In researching the issue, we found this interesting passage from an older California Supreme Court case: Upon a person's death, "the temptation is strong for those who are so inclined to fabricate evidence giving color to a claim that the parties entered into... an oral arrangement." Notten v. Mensing, (1935) 3 Cal.2d 469, 477.

Under the Probate Code, a contract to make a will is established only by 1. a will stating material provisions of the contract; 2. an express reference in a will to a contract and extrinsic evidence proving the terms; or 3. a writing signed evidencing the contract.  Probate Code Section 21700.

Probate Code Section 21700 requires an express reference in a will or other writing to the contract to make a will or devise and extrinsic evidence of its terms.  In the absence of the three specified forms of writing, Probate Code Section 21700 permits proof of the contract by "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."

In our case, the invalid will did not state the material provisions of the alleged contract to make a will. Nor did the invalid will make an express reference to an alleged contract to make a will.

Web Resources

FindLaw
Thomson West
U.S. Courts
Westlaw
United States Chamber of Commerce
FirstGov
Library of Congress
White House
Internal Revenue Service
Yahoo!Legal Blog Directory