Can a person give up his or her right to make a will? Are promises to make a will enforceable? Or can a person be forced to include (or not include) certain beneficiaries and certain provisions in a will?

In New Jersey, the answer to both questions is YES.

Under New Jersey law, a person can enter into a legally binding contract controlling the dispositive provisions of that person’s will.

Legal Authority

“A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating a material provision of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.” 

N.J.S.A. 3B:1-4

Dad promised to leave me the house — Is that promise enforceable?

Oral agreements to make a will are generally not enforceable.

In Matter of Estate of Cosman, 193 N.J. Super. 664 (App. Div. 1984), the court ruled that an oral agreement to make reciprocal wills was not enforceable where the wills were each silent as to the existence of the agreement. The court held the statute was clear on its face and refused to find the existence of an implicit agreement to create unrevocable reciprocal wills.

However, in accordance with traditional contract principles, it may be possible to enforce an oral agreement in a court of equity where there has been part performance. For example, in a situation where testator promises to leave caretaker $50,000 in exchange for services, and where those services are rendered, caretaker would have a claim against testator’s estate. Obviously, the better practice would have been for caretaker to reduce the agreement to writing.

Marriage Separation Agreements

Marriage Separation Agreements (MSAs) commonly include provisions relating to a party’s will and overall estate plan. As part of a divorce, it is common for one party to agree to leave $X to the other at that party’s death if death occurs within a certain timeframe. This agreement is often backed by life insurance or a retirement account naming the ex-spouse as beneficiary. If that party either fails to make a will which includes the required bequest, or if that party fails to maintain the life insurance or IRA, the aggrieved party can bring a claim against the estate for breach of contract.

Enforcement

If the testator breaches the contract and fails to include you as a beneficiary, you can bring a claim against the testator’s estate and either seek damages or specific performance. Generally, you would not be able to invalidate the testator’s will, but you could seek a judgment from the court entitling you to what is owed. Timing is crucial and if you wait too long to bring a claim, that claim may be lost.

If you feel you had a promise to make a will and that promise was not kept, you should consult with counsel immediately to protect your rights.