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Maryland Estate Planning: Is a Contract To Make A Will Valid?

Woman Helping Senior Man To Complete Last Will And Testament At Home

In Maryland, a child (or others expecting an inheritance) has no binding right to an expected inheritance even if a parent says to the child that they will be “leaving everything” to the child. This oral statement is not a binding or enforceable contract in Maryland.

This is true even if spouses say to each other: “Loved one, let us agree to make mirror wills where everything goes to you, and then when we are both gone, everything goes to our children.” Again, this oral statement is not a binding or enforceable contract in Maryland. Moreover, in this example, after the death of the first spouse, there is no one to enforce the agreement. The first spouse has passed and the children cannot enforce the oral agreement. Just as importantly, in Maryland, a surviving spouse typically receives full ownership of the couple’s assets and is free to dispose of that property as seen fit. Further, any will is revocable (as long as he or she still possesses the mental capacity to revoke and make a will).

However, in Maryland, it IS possible to create valid and binding contracts to make a will or devise property through a testamentary instrument. The key to validity is having the contract reduced to writing and ensuring that the contract explicitly identifies the “third parties” — often, a child or children — that are intended to be the beneficiaries of the contract. The main legal problem with the “contracts” in our two examples above is that the contracts are oral.

Courts in Maryland have long agreed that agreements to make a will can be valid. These are often legally referred to as “agreements to make a particular testamentary disposition” of assets. In evaluating the validity and enforceability of such contracts, Maryland courts will use the same rules that are applied to other types of contracts. In particular, contracts that relate to real estate and that are expected to last for years or more must, generally, be in writing. This rule is called the Statute of Frauds. This is why a contract to make a will must be in writing. This is particularly important if the will involves real estate.

In addition, the contract to make a will must meet the other requirements of a valid Maryland contract. That is, the contract must be fair, validly formed, based on sufficient exchange of consideration and there must be sufficient proof of the contract’s definite terms. Because of the nature of a contract to make a will, in Maryland there is a higher standard of proof when trying to enforce such a contract. The standard is clear and convincing.

Maryland and D.C. Divorce and Family Law Attorneys

For more information, contact the seasoned and experienced Maryland and D.C. divorce, family law and estate planning attorneys at The Law Offices of Thomas Stahl. We have the experience and expertise you need. Schedule a consultation today or call us at (410) 696-4326 or (202) 964-7280.

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