B.1. Introduction
Contracts to make wills are very similar to and share many legal principles with mutual wills, which are discussed in the section immediately following. The latter are really reciprocal wills made pursuant to a contract. Thus much of the discussion of contracts to make wills is applicable to and will itself include discussion of the subject of joint and mutual wills.3 When the cases on mutual wills apply to will contracts generally, they will be cited in this section. When they present special problems not generally applicable, they will be treated separately.
As the courts are fond of saying, contracts to make wills are regarded with a great deal of suspicion. At one time a Washington court was prompted to state that alleged promises to devise property in return for service of one kind or another have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them to the detriment and disinheriting of lawful heirs who otherwise would be entitled to the estate, and in enforcing them by specific performance when established. "Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises.... They
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are the natural resort of unscrupulous persons who wish to despoil the estates of decedents."4
The same court quoted Dean Pound's caution that "[a]fter one reads these cases he cannot but have an uneasy feeling that general expectations of becoming the object of a testator's bounty often ripen into a contract after the testator's death."5
In Washington the volume of such cases alleging will contracts seems to have fluctuated directly with the courts' willingness to uphold them, with a small period of time (and number of volumes of the Washington Reports) accounting for a large percentage of the cases. As will be seen, the strictness of the standards has itself fluctuated with the courts' perceived need to control the incidence of such claims. We are in a moderately liberal era as of this writing, but it is impossible to predict which way the courts will tend tomorrow.
The typical will contract is an agreement between the testator and a third party that, in exchange for services to be rendered to the testator (such as personal care, farm labor, etc.), the testator will execute a will leaving to the promisee all or part of his or her estate. (The myriad variations on this theme will become evident in the detailed discussion below.) Occasionally the consideration is other property or property rights transferred to the testator or to a third person on the testator's behalf, and in the case of mutual wills,6 it is a mutual promise to execute a reciprocal will in the testator's favor.
When a will contract is in writing and its terms are clear, it is a perfectly valid and enforceable agreement consistent with public policy and subject only to the usual rules of contract law with respect to offer, acceptance, consideration, and the like.7
When, however, the contract is oral, the Statute of Frauds8 becomes the major obstacle to enforcement. Although the same basic elements of a contract must be established,9 questions such
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as sufficiency of the evidence and part performance become most prominent.
B.2. Written Contracts
As indicated above, if the will contract is in writing, there is not a Statute of Frauds problem (assuming a sufficient memorandum to avoid the statute), and the court will focus on the presence of the usual requirements for a valid contract. This means that such requirements as part performance, a key point of dispute in most (oral) will contract cases, need not be considered.10 The strict standards of proof that attach to alleged oral will contracts do not apply, even when only a part of the writing can be produced.11 Important terms, such as the identity of the promisee and the description of the property, can be filled in by extrinsic evidence of the circumstances.12 A written contract that is lost will, once properly proven, still satisfy the Statute of Frauds. If the writing is lost, however, it may be necessary to satisfy a high standard of proof as to its existence, at least if there is no copy available and the content (as opposed to the execution) of the contract is in question.13
Generally a will contract need not be notarized.14 The writing can be in a separate document or can be a part of the will itself.15
Of course, a writing that is not referable to the consideration alleged and does not state more than an intention to leave property will not suffice.16 Nor will, for example, an alleged contract to adopt—itself unenforceable, even if in writing—serve to prove an agreement to devise to the purported adoptee.17
B.3. Oral Contracts
B.3.a. The Statute of Frauds
Most litigated will contracts are oral, and of course this is what creates most of the court's understandable suspicion as to their authenticity. It also results in the contract being subject to the
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Statute of Frauds. Generally will contracts involve real property, and they are for that reason within the statute.18 If both real and personal property are involved, the Statute of Frauds applies to both.19 If only personal property is involved, the agreement is not within the Statute of Frauds,20 unless for some other reason such as it being made in consideration of marriage.21
The major implication of an oral will contract's being within the Statute of Frauds is that, even if it is proven to exist (to have been agreed upon), it will be void unless part performance or some other excuse removes it from the statute. Part performance is discussed in §B.3.b.
B.3.b. Proof of the Contract
B.3.b.(1) Standard of Proof
Regardless of whether the oral contract is within the Statute of Frauds, its existence and content must be proven, together with the fulfillment of its terms; and it is here that the court has been most skeptical. The proponent must show that there was in fact a contract to devise property, the promisor's agreement to which was objectively manifested during his or her lifetime, and that the consideration contemplated by the agreement was rendered in reliance on it.22 If the contract and the consideration (services) are proven, reliance can be presumed if there is no other ready explanation.23 Over the years the standard of proof by which the proponent must establish these factors has fluctuated from the nearly impossible "beyond legitimate controversy"24 or even stricter "beyond all reasonable
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doubt"25 to the other extreme of "reasonable certainty."26 In Cook v. Cook,27 the court engaged in a complete reexamination of the question of standard and burden of proof and concluded that the proper standard was one midway between the civil "more probable than not" and the criminal "beyond reasonable doubt," settling on the formula that the trier of fact must be "convinced to a high probability" of the required elements.28 The court also added the requirement, however, that there be "some substantial evidence objectively manifesting that the decedent recognized the agreement as existing during his lifetime."29 Furthermore, the burden of producing evidence (the evidence necessary to submit the question to the trier of fact) was set at "substantial" evidence, defined as that which "support[s] the conclusion that the alleged fact is so, either directly or by reasonable inference and not merely as a matter of conjecture."30 There must be substantial evidence not only of the required "objective manifestation," but also of "any legally required elements" of contract, performance, and reliance.31 The new standard did not meet with universal approval, as the concurring and dissenting opinions in Cook illustrate; but it has been followed in subsequent cases.32 The court rejected the requirement of earlier cases that there be evidence of some "substantial thing" or "positive act" done by the decedent "in pursuit of the contract."33
The Cook court was fully aware of—indeed, it set out at length— the dangers and difficulties inherent in the upholding of oral will
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contracts, but it quite properly recognized that the answer was not to set a standard virtually impossible of satisfaction, but to set a standard at a realistic level that would retain a high degree of protection for a decedent's estate while protecting as well those individuals who in fact gave valuable consideration in reliance upon a contract that is clearly shown to exist.
As for what the "high probability" standard means in practice, the court has equated that standard with the more familiar one of "clear, cogent and convincing" evidence,34 which is the standard applied to will contests35 as well as the usual standard for proof of will contracts in other jurisdictions.36
Not surprisingly, the courts intone the usual litany that cases of alleged will contracts are necessarily decided on their own individual facts.37 In Jennings v. D'Hooghe,38 however, the court indicated that such cases should be decided in conformity with past decisions with similar facts,39 and to that end it proceeded to set out and analyze the facts of 37 prior reported cases. As explained above, Jennings was later disapproved as to its strict standard of proof in Cook. The continued validity of its process of reliance on past decisions based upon that standard is doubtful, although the court may continue to seek conformity in future decisions under the new standard.
B.3.b.(2) Evidence of a Contract
(a) Attempted but Invalid Consistent Disposition. On occasion the promisor of a will contract makes a good faith attempt to carry out the contract by executing a will in conformity with the agreement, but for some reason the will is invalid. Although the will itself cannot be saved by...
