A testator may enter into a contract with an individual to include that person into the Will and/or to provide special benefits to the beneficiaries and/or not to revoke or alter the Will which has been made. The individual with whom the testator enters into the contract is often referred to as a promisee.
A valid contract to make certain provisions in a Will must satisfy the legal requirements of a contract, including an offer, acceptance, and consideration. One of the most essential features of the Will is that it must be in writing. If the Will is not written and it is an oral contract, it must be enforced by clear and convincing evidence.
Further, a promisee can challenge a Will on the basis that the terms of the contract do not reflect the provisions included in the Will, and hence the contract was breached.
A contract may be made by a testator for a number of reasons including a:
- Contract to make a particular Will;
- Contract to make a Will with a particular provision in it; or
- Contract not to revoke an existing Will.
The testator can enter into a contract with another individual for special arrangements made in the Will. If a testator contracts with another individual to make a Will and the Will is not consequently made, then the beneficiaries are entitled to hold the same position as they would have had, had the Will been made according to the contract.
A contract of not to revoke a Will is a valid contract. It generally arises in Joint Wills or Mutual Wills.
A Joint Will is a single Will executed by two or more testators. In most cases, the testators are the spouses. The general scheme of a Joint Will is that when a spouse dies, the deceased spouse’s property goes to the surviving spouse, and when the surviving spouse dies, the property goes to designated beneficiaries agreed to by both spouses, usually their children.
A Mutual Will has the same testamentary distribution and objective as a Joint Will, but each testator executes their own Will. However, each Will has identical provisions except for the designated initial recipient of the testator’s property.
The main advantage in having Mutual Wills is that you have a joint agreement with the person making the contract. This means that the other person’s Will cannot be revoked without your consent. Since the assets are subject to a constructive trust, they must be held in accordance with the agreement made at the time of creation of the Mutual Wills.
In the absence of any prior agreement to change or revoke a Joint or Mutual Will, it is presumed that such Joint or Mutual Will, will not get revoked unless the changes are agreed to by the parties.
This article is aimed to give you an insight regarding the involvement of contracts in Will. If you would like to seek any guidance in relation to a Will and want to have a contract for the same, please feel free to contact our team of experts at Owen Hodge Lawyers.