10 Estate Planning Mistakes to Avoid

Estate Planning Mistake #6: Making Promises Outside Your Estate Plan — Marlon Brando

If a gift matters, make the documents match the promise.

The Marlon Brando estate planning story shows how an alleged promise made during life can become a lawsuit after death.

Brando died in 2004 at age 80. He had a formal estate plan.

But after his death, his longtime caregiver and personal assistant, Angela Borlaza, claimed Brando had promised her something his estate planning documents and property records did not clearly provide: a house.

That disagreement eventually ended up in court.

Marlon Brando Had an Estate Plan

The problem was not that Brando failed to plan.

Brando had a will and a living trust. His will generally directed his estate into the trust, allowing the ultimate terms of his estate plan to remain largely private.

But even a sophisticated estate plan cannot automatically account for promises made outside the documents.

According to Borlaza, Brando bought a house in the San Fernando Valley for her in 2002. She claimed that Brando kept title in his own name for tax reasons but promised to transfer the deed to her later.

The transfer never occurred.

After Brando died, the house remained legally titled in his name.

An Alleged Promise Became a Lawsuit

Borlaza initially asserted a claim against Brando’s estate for the house.

She later sued Brando’s executors. Her lawsuit included claims involving the house and an alleged oral agreement with Brando.

Borlaza maintained that Brando intended the house to belong to her. She sought the proceeds from its sale, along with additional damages. CBS News.

The lawsuit involved other allegations as well, including a challenge to changes made to Brando’s estate plan shortly before his death. Those allegations were disputed.

The case never produced a judicial determination that Brando actually made an enforceable promise concerning the house.

Instead, the parties settled. Los Angeles Times.

In 2007, Brando’s estate agreed to pay Borlaza $125,000 to resolve her claims.

A Promise Is Not the Same as a Transfer

The dispute illustrates a basic estate planning problem.

Someone may say:

“The house will be yours.”

But what does that mean legally?

Is the person making a gift today?

Is the property supposed to pass at death?

Is the property compensation for services?

Is there a binding contract?

Those are very different arrangements.

If someone intends to make a lifetime gift of real estate, that may require a deed.

If the property should pass at death, the gift might be addressed through a will, trust, deed, or another planning technique.

If the promise is compensation for services, a written agreement may be appropriate.

The legal documents should reflect the actual intention.

New Jersey Requires Written Evidence for a Contract to Leave Property

This issue has particular significance under New Jersey law.

N.J.S.A. 3B:1-4 addresses contracts to make a will or devise property.

For agreements made after September 1, 1978, the statute provides that such a contract can be established only through:

• provisions of a will stating the material terms of the contract;
• an express reference in a will to the contract, together with evidence establishing its terms; or
• a writing signed by the decedent that evidences the contract.

That is much different from relying on a conversation.

A person may sincerely believe that someone promised them an inheritance. But after the person making the promise dies, proving exactly what was said, what was intended, and whether the promise was legally binding can become extraordinarily difficult.

The person who could best explain the conversation is no longer available to testify.

The Marlon Brando Estate Planning Lesson

Estate planning documents and real-world promises should tell the same story.

If you promise someone a house, business interest, investment account, valuable collection, or other significant property, ask whether your legal documents actually accomplish what you promised.

The same applies when circumstances change.

Maybe you decide to reward someone who has cared for you.

Maybe you promise one child a particular asset.

Maybe you tell a friend that they can continue living in your home after your death.

Maybe you agree to compensate someone through your estate.

Do not assume the conversation is enough.

Review the promise with your estate planning attorney. Determine the right way to implement it. Then make sure the will, trust, title, beneficiary designation, or other document produces the intended result.

Put Important Wishes into the Plan

Marlon Brando had an estate plan.

The litigation arose because Borlaza claimed that Brando had also made promises outside that plan.

Whether Brando actually intended to give her the house was never conclusively decided in court. The parties settled the dispute instead.

That uncertainty is the lesson.

Your family should not have to decide whether you meant what you said or what you signed. Make them say the same thing.

This article discusses publicly reported allegations concerning Marlon Brando and his estate for educational purposes. Borlaza’s claims were disputed and resolved by settlement. The settlement did not establish that the allegations were true.

How long has it been since you reviewed your estate plan with an attorney?