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Unwritten Promise to Write a Will is Not Enough

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Unwritten promise to make a will is not enough


Here’s a basic rule, applicable in every U.S. state: wills need to be in writing. But what about a promise to write a will, or to leave a particular item to a particular person? Unsurprisingly, those promises usually have to be in writing, too.

Jim’s Story

Take Jim Graham (not his real name). His girlfriend of seventeen years, Terry, sold her home to Jim. Part of the deal: he agreed to leave her his entire estate. In fact, he wrote and signed a will leaving he house to Terry shortly after they entered into the transaction.

A few years later Terry transferred an unimproved half-acre lot to Jim as a gift; the couple agreed that he would continue to name her as the sole beneficiary of his entire estate.

As these things sometimes go, the relationship began to unravel a few years later — about eight years after the last real estate transaction, to be more precise. They separated, and Jim signed a new will leaving his entire estate to his son. Jim died four months after signing the new will.

Jim’s son filed the new will with the Texas probate court, which ruled that it was Jim’s last will. Terry filed suit in the probate proceeding, alleging that Jim had breached his contract to leave his estate to her. She also alleged that Jim could not change his will because of the legal doctrine of “promissory estoppel.”

Application of the estoppel principal would have meant that the probate court found that Jim was prevented from changing his will because Terry had already complied with her part of the bargain by transferring the two pieces of property to Jim. Terry asked the probate court to order Jim’s son not to try to sell the properties while she pursued her litigation.

Court Rulings

The probate court disagreed with Terry’s reading of the law, and dismissed her application. On appeal Terry argued that contract principles would let her prevail on the ultimate claim against Jim’s estate.

The Texas Court of Appeals affirmed the probate court’s ruling. It found that Terry had no cause of action against Jim’s estate, and so could not prevail on the request for a temporary injunction barring sale or transfer of the properties.

Why couldn’t Terry prevail? Because an agreement to sign a will, or an agreement not to revoke an existing will, must be in writing. Such an agreement would, in a sense, itself be a will; it would need to be almost as formal as a will. That means it needs to be in writing, and signed by the contracting party. Even if Terry could conclusively prove that Jim had made the promise, she could not win her contest in probate court. Estate of Gilbert, February 8, 2017.

Arizona’s Rule

What if Jim had lived (and died) in Arizona? Would Arizona courts rule the same way? Probably.

Arizona’s probate statutes address the requirement for a contract to make a will. The same rules, incidentally, would apply if the alleged contract was not to make a will, or not to change a will. Arizona’s law is contained in Arizona Revised Statutes section 14-2514, and it requires any such agreement to be in writing. The “testator” (the person who is alleged to be bound to make, not make, or not change his will) must sign the agreement, too. In other words, Jim’s oral promise to make Terry the sole beneficiary of his estate would not be enforceable under Arizona law, either.

Both the Arizona and Texas statutes do allow an agreement about wills to be included in the will itself. In other words, if Jim’s original will had recited his agreement with Terry, it might have become an enforceable agreement.

One place this type of agreement often appears (or is alleged): in the case of mirror-image wills between spouses. Unless each will recites that the couple have agreed not to change their wills, however, the surviving spouse probably retains the power to make any changes he or she wishes.

We have written about this issue before, and particularly in the context of spousal agreements, in Is a Contract Not to Revoke Your Will Enforceable? A Good Idea?  As we explained then, the agreement must be in writing. The bottom line: an unwritten promise to write a will is not enough.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.