Contracts may be made between people either contracting to make a will or contracting not to revoke a will. However, these contracts are goverened by the law of contracts, not wills. If a will is present and it violates the contract, the will will still be probated but the contract beneficiary may then sue (using contact law) for breach of contract. The result is often damages or a constructive trust.
Contract to Make a Will
Most people who contract to make a will are spouses. Generally one spouse having the other agree to make a will devising some property. The issue with this is that there needs to be some consideration. A promise to care for the spouse is not enough.
Contract to Not Revoke
Keith v. Lulofs
724 S.E.2d 695 (Va. 2012).
Facts
Arvid and Lucy executed a reciprocal will (both wills look the same). Each will said that the estate would go to the surviving spouse, then to their children in equal shares.
Arvid and Lucy both brought one child into the relationship. When Arvid passed, Lucy revised her will and life insurance policy disinheriting Arvid’s son. When Lucy died, Lulu’s (Lucy’s daughter) sought to enter her mother’s will into probate, and Kieth (Arvid’s son) contested.
Analysis
Kieth argues that the reciprocal will becomes an irrevocable contract upon the death of one party. He also argues the conversations with the father shows that the father intended the will to be a contract not to revoke.
However, the court disagrees with this argument. If reciprocal wills result in an irrevocable contract, then this would take away from the freedom of disposition. So, to create a contract, there needs to be an express term saying not to revoke.
