This blog post is part 2 of the series on oral contracts to make wills, and this post contains several practical tips for how a person can optimize his chances of winning a claim for breach of an oral contract to make a will. In part 1 of the series, I provided an overview of the law in Virginia concerning oral contracts to make wills, whereby a testator (the person making the will) enters into a contract with another person, with the testator agreeing to provide for him in his will, in exchange for the other party doing something for him.
First, if a testator orally promises to provide for you in his will if you do something for him, do your absolute best to try to get the testator to put that promise in writing. You will have a vastly easier time enforcing a written contract to make a will compared to an oral contract to make a will. Preferably, you’d have an attorney draft up the written contract to make a will. If the testator is not willing to sign a written contract drafted by an attorney, you could simply draft up an agreement on a piece of paper that contains the names of the parties to the agreement (your name and the testator’s name), the terms of the agreement, and the parties’ signatures. I don’t necessarily recommend that you try to do this yourself, but I only suggest it as the next best option in the event that the testator refuses to sign a contract drafted by an attorney.
If you’re unable to get the agreement in writing, then make sure that you have some corroborating evidence of the existence of the oral agreement. In other words, make sure that you have some type of proof above and beyond merely your own claim that the testator made an agreement with you. For example, bring a friend or neighbor along for the discussion. In an ideal world, the best witnesses are people who don’t have a motive to testify in your favor, so a disinterested third party such as a neighbor, social worker, or clergy member would be the optimal candidate to witness the oral contract. Moreover, by having an independent party corroborate the agreement, you should be able to satisfy Virginia’s Dead Man’s Statute (which I discussed in my earlier blog post).
Third, you’ll want to ensure that the terms of the oral contract are definite and certain (rather than vague and ambiguous). For example, an oral contract needs to be more detailed than merely “I’ll provide for you”, or “I’ll give you a good part of my estate”. Note that both of these statements are subjective and open to interpretation as to what exactly the parties agreed on. Instead, the terms should be detailed, such as “I’ll leave you my entire estate,” or “I’ll leave you half of my estate,” or “I’ll leave you my house and my car.”
Fourth, you’ll want to ensure that you perform your side of the contract. In most cases, contracts to make wills call for the contracting person to take care of the testator. If that’s the case, you’ll want to ensure that you diligently care for the testator. You should document how you cared for the testator, such as by keeping a journal of actions you took, saving receipts, keeping communications, keeping medical records, etc. By documenting your actions, you’ll have established a paper trail of evidence that will be helpful if anyone ever tries to keep you from enforcing the oral contract on the basis that you didn’t live up to your end of the bargain.