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10/03/13 It's The Law: Promise to Make a Will Must Be Written

lt's The Law

Promise to Make a Will Must Be Written



My neighbor offered to leave me a substantial gift in his will if I would take care of his yard for the rest of his life. If I take care of his yard, will I be able to collect?


If you made the oral arrangements prior to 1958, you might be have been able to collect. But, since 1958, Florida has had various iterations of a statute which requires agreements to make a will be in writing. The current statute requires any agreement to make a will, give a devise, not to revoke a will or not to revoke a devise not only be in writing, but also signed in the presence of 2 signing witnesses.

Because there is a specific statute, the writing requirement for promises to make a will is not governed by the Statute of Frauds. The Statute of Frauds is a statute which requires certain types of contracts be in writing, such as contacts for the sale of real estate. Even if we were dealing with the Statute of Frauds, part performance can relieve a party of the requirement that the contract be in writing by providing relief and equity to relief that party from fraud.

To enforce an oral contract for the sale of real estate, the buyer must usually prove that the buyer has paid all or part of the purchase price, the buyer has possession, the buyer made valuable and permanent improvements with the seller's consent or absent improvements, failure to enforce the transaction would perpetrate a fraud on the buyer. Yet another provision of the Statute of Frauds makes unenforceable any oral agreement that could not be performed within 1 year and any lease for a period longer than 1 year. Part performance of oral contracts involving those subjects might also get relief and equity, but not if seeking only money damages. Money damages are awarded by law and not equity.

If you enter an oral agreement with your neighbor and keep your part of the bargain, you might hope that the partial performance exception to the Statute of Frauds would help you recover. That hope would be dashed by Florida court cases holding partial performance doctrine is inapplicable because it would render the statutory requirements for written agreement to make a will a nullity.

The statute addresses oral agreements to make a will or devise. As two recent appellate cases confirm, it does not govern other agreements concerning inheritance. In the recent case of Ferguson v. Cairns, a mother frequently threatened to disinherit one or both of a brother and sister. The siblings orally agreed that if one was disinherited, they would share the inheritance of the other. The brother was disinherited and sister refused to give him half of what she got. The brother sued and sister defended, not raising the statutes, but claiming the contract was void for lack of consideration. The trial court agreed, but the appellate court reversed ruling that the mutual promises of brother and sister was sufficient consideration to create an enforceable oral agreement. The sister did not raise the issue of enforceability for a contract that would take longer than one year to perform.

The on year limit was argued in the later case of Browning v. Poirier. In Browning, a romantically involved couple agreed to split the winnings from any lottery tickets they purchased while romantically involved. Fourteen years later, the parties were still romantically involved and Poirier bought a winning lottery ticket, got $1,000,000,000 and refused to give Browning half. Browning sued and the court ruled the contract could have been performed in one year therefore it was enforceable, even though it did not become an issue until fourteen years after it was created.

The cases discussed in this article evidence the never-ending search of lawyer for exceptions to the rules. They underscore the importance of good legal advice for all contracts that may involve significant value. If you choose to take your neighbor up on his offer, you should require a writing and it should be prepared by your attorney. Otherwise, the best you are likely to get is exercise and a nice looking yard next door.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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