Thursday, April 22, 2010

Oral Contracts To Make A Will: Possible, But Not Easy

A last will and testament is a written document, signed by the person who made it. Surprisingly, though, are situations where a person promises to "leave" something to someone after they die if the that person does something for them during their life. These are called "oral contracts to make a will" or "oral contracts to devise." A typical example: John the widower says to the neighbors, a young couple named Tom and Ann: "Take care of me and my house for the rest of my life, and I will leave you my house." Tom and Ann say okay, and spend several years doing just that. But John never makes a will leaving them the house, and ends up dying without a will. John's sole heir is his son, Luke, who lives three states away and didn't do much of anything to care for John during his later years.

Under the law of intestacy (i.e., dying without a will) in Virginia, everything John owned goes to Luke. But, Tom and Ann say, "Wait a minute, we made a deal with John, and we lived up to our end. We want the house." Luke says, "Sorry." Well, no so fast.

This is the typical situation where Tom and Ann may seek to enforce an oral contract to make a will. And what is surprising is...that Tom and Ann may win this one. Under Virginia law, an oral contract to make a will can be successfully proved. But, and it's a big BUT, you have to be able to prove the existence of the oral contract, and that you lived up to your end of the bargain, all by clear and convincing evidence (a higher burden of proof than the normal preponderance of the evidence).

AND, in order to prove the contract, you have to have a lot of evidence to prove this agreement other than your own testimony. If it's simply your word, even if it is uncontradicted, you'll lose the case.

The difference is highlighted by two cases, one a recent Virginia Supreme Court case, Virginia Home For Boys & Girls v. Phillips, and the other a circuit court case that I recently handled. In the Phillips case, Phillips had only his own testimony, all of which was essentially uncontradicted. But, under Virginia law, you have to have independent corroboration of your testimony from other witnesses or other documentary evidence. Your own testimony is not enough, no matter how credible you are or if your testimony is not in dispute.

In my case, my client testified about the agreement that his father and him reached (son would take care of father for the rest of his life, and in exchange son would get everything of his father's after he died). But we had several other witnesses who also testified that the father told them about the agreement and/or made statements that my client was to get everything after the father passed away. And we had a lot of evidence about the care that my client provided for his father.

In Virginia estate litigation, oral contracts to make a will are hard cases to win. You have to have a lot evidence - and the right kind of evidence.