Am I entitled to money my father instructed the executor to give me before he deceased?
Full Question:
Answer:
People sometimes promise to leave all or part of their estates to a particular person or persons. This is often called a "contract to make a will," but the promise may also be to make a particular bequest; not revoke an existing will; or not make a will (so the property will pass to the heirs under intestacy laws).
In some states, an oral promise to make a will may be enforced. Enforcement is generally based on principles of fairness, when the other party who was promised something through inheritance performed the acts due by them in exchange for the promise to make the will. The courts may find that fairness, or "equity," may prevent an estate from denying the existence of the oral contract, where the deceased benefited from the contract during his lifetime, i.e. the other person did what was promised.
The situations where the other person did what was promised typically arise where the inheritance was promised in exchange for providing care during the decedent's lifetime, or the promise was made as part of an agreement to make mutual wills. Mutual wills are wills made by two people, often spouses, in which each gives his/her estate to the other, or agree upon the distribution of their assets, such as leaving their property to eachother's children. If there was no consideration (something of value) given in exchange for the oral promise of the inheritance, the oral contract will typically not be enforced.
If the gift was to be made during the decedent's lifetime under a power of attorney, it would be a matter of determination for the court to decide what instructions were given to the agent under the power of attorney, whether the agent failed to follow the instructions, and the authorized powers of the agent. The agent under a power of attorney has a fiduciary duty to comply with the instructions of the principal and terms of the power of attorney document. Some of the factors, among others, that a court will consider may include the language of the power of attorney document, when it was to be effective, and whether the intent to make a gift was revoked. I suggest you consult a local attorney who can review all the facts and documents involved.
The following is an example of a state statute governing contracts to make a will:
21700.
(a) A contract to make a will or devise or other instrument,
or not to revoke a will or devise or other instrument, or to die
intestate, if made after the effective date of this statute, can be
established only by one of the following:
(1) Provisions of a will or other instrument stating the material
provisions of the contract.
(2) An expressed reference in a will or other instrument to a
contract and extrinsic evidence proving the terms of the contract.
(3) A writing signed by the decedent evidencing the contract.
(4) Clear and convincing evidence of an agreement between the
decedent and the claimant or a promise by the decedent to the
claimant that is enforceable in equity.
(5) Clear and convincing evidence of an agreement between the
decedent and another person for the benefit of the claimant or a
promise by the decedent to another person for the benefit of the
claimant that is enforceable in equity.
(b) The execution of a joint will or mutual wills does not create
a presumption of a contract not to revoke the will or wills.
(c) A contract to make a will or devise or other instrument, or
not to revoke a will or devise or other instrument, or to die
intestate, if made prior to the effective date of this section, shall
be construed under the law applicable to the contract prior to the
effective date of this section.
