Will_substitutes

Will_substitutes - WILL SUBSTITUTES I. CONTRACT TO WILL/NOT...

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WILL SUBSTITUTES I. CONTRACT TO WILL/NOT CHANGE WILL a. REMEDIES FOR BREACH i. Will that breaches the contract will still be subject to probate. 1. Will Still goes to probate ii. Parties to a contract to will can sue as 3 rd party beneficiaries 1. Sue the estate for breach of contract trying to recover money damages 2. Impose a constructive trust so that the property is held/given to him, so as to prevent unjust enrichment. iii. Don’t recommend clients to use them, litigation nightmares, and stretch out b. STANDARD OF PROOF i. Contract has to be proven to exist by clear and convincing evidence. c. REQUIREMENTS i. STATUTE OF FRAUDS 1. UPC § 2-514 : a. Valid will that sets forth all the provisions of the K; or b. Have an express reference to a K in the will, and extrinsic evidence will be allowed to prove the agreement (the agreement can even be oral) i. Cant alter the contract to will or the will Orally c. Have a written contract signed by T that sets forth all terms of the contract; 2. NY EPTL 13-2.1 a. Must be written K signed by T b. No reference in will necessary c. Policy : These K’s might offend the policy of the statute of wills since control testamentary dispositions w/o formal requirements. 3. Hypo : T promises, “to remember Lisa in his will.” Reference in Will says, “Hi Lisa.” Valid K to will? a. UPC(b) : there is an express reference, so parol evidence will be allowed, but the K itself is too vague – just a promise to remember. ii. CONSIDERATION 1. For K to be enforceable they must be supported by consideration 2. Pre-existing obligation is not consideration: a. Hypo : W contracts to take care of H in consideration for H giving her property in his will. She takes care of him, when H dies, he leaves her no property in his will. Was there consideration? i. Pre-Existing Obligation: Marriage imposed on wife a legal obligation to take care of her spouse, so no consideration. b. Counter arguments: i. Wife gave up her right to breach K. She has the power to change the nature of the other person’s rights by breaching the contract. So since you have this power to breach, she could say sue me, I won’t do it. But when she makes the K, she is promising not to breach. ii. Unjust Enrichment/Quantum Meroit/Restitution : If someone benefits even w/o a contract can get money in restitution for the value of the benefit conferred. iii. K was to do more than her legally-imposed duty: 1
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3. Most courts call a person who is promised money in a will a legatee rather than a creditor (who takes before legatees). a. Hypo : T promises to leave $500K charity. T leaves residue for charity, but if legatees are paid first, there is not $500K in the residue. Charity’s Claims it is a creditor and must be paid before the legatees. Case settled. b.
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Will_substitutes - WILL SUBSTITUTES I. CONTRACT TO WILL/NOT...

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