Whether in the context of a divorce proceeding or when a couple is preparing their estate planning together, some people agree to a contract to subsequently make a Will or Trust that names another as the primary beneficiary. This primarily (but not always) takes place when a married couple enters into a prenuptial or postnuptial agreement and in said agreement, they each agree that they will each sign a Will that makes the other person a beneficiary.
What if in this agreement, they both agree that they will never revoke or amend such a Will regardless of divorce? What if one of them changes the Will after the divorce? What happens when that person dies?
Florida Courts have dealt with similar situations and have held that such an irrevocable contract to make a Will can be made binding and damages may be sought against the breaching party’s estate. In Boyle v. Schmitt, 602 So.2d 665 (Fla. 3d DCA 1992), the Court held that “unlike a will which is clearly ambulatory in nature and therefore may readily be revoked by a competent testator, a contract to make a will may be irrevocable and therefore subject to specific enforcement by the court.” (quoting Donner v. Donner, 302 So.2d 452, 455 (Fla. 3d DCA 1974). As a result, “[i]f the promisor breaches his agreement to make a devise or not to revoke a will, the beneficiary of the promise or improperly revoked will bring an action to enforce the terms of the agreement.” Johnson v. Girtman, 542 So.2d 1033, 1035 (Fla.3d DCA 1989).
Florida has made it clear that an otherwise competent testator’s ability to revoke, modify, or otherwise amend a Will is a right that he or she will always maintain. However, if such a testator signs a separate contract promising to never revoke that Will, the promised beneficiary may have a cause of action for breach of contract against the breaching party’s estate and can seek financial damages.
Nevertheless, it is always best to consult with an experienced probate litigator to learn what potential rights and causes of action you may have.