MBE Rules · Wills, Trusts & Estates
Contracts Concerning Wills
Cal. Prob. Code § 21700
The rule
A contract to make or not revoke a will requires the will stating the material terms, an express will reference plus extrinsic proof, a signed writing, or (in California) clear and convincing evidence of an enforceable agreement; joint or mutual wills alone create no presumption.
In plain English
A contract regarding a will must clearly outline its main terms and be documented in writing, signed by the parties involved. In California, there must also be strong evidence to support the existence of the agreement, and simply having joint or mutual wills does not imply a contract was formed.
Worked example
Alice and Bob agree that Alice will leave her estate to Bob in her will. However, Alice later creates a new will that leaves her estate to Carol instead. Bob cannot enforce the original agreement because there was no written contract or clear evidence of their agreement, leading to Carol inheriting the estate.
Memory hook
Wills need written contracts, not just promises!
The trap
Students often confuse the existence of joint or mutual wills as evidence of a contractual obligation, but this is not sufficient without additional proof.
How examiners test it
Questions typically present a scenario involving changes to a will and ask whether a contract regarding the will can be enforced, often testing the nuances of what constitutes sufficient evidence.
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More Wills, Trusts & Estates rules
- Co-Trustees · Cal. Prob. Code § 15620
- Trustee Removal · Cal. Prob. Code § 15642
- Formal Will Requirements · Cal. Prob. Code § 6110
- Spendthrift Exceptions · Cal. Prob. Code §§ 15305-15307
- Ademption of Specific Devises · In re Estate of Newsome (1967) 248 Cal.App.2d 712
- Intestate Succession · Cal. Prob. Code §§ 6400-6414