“Cross My Heart and Hope to Die”: Are Promises to Make a Gift by Will Enforceable in Texas?

Probate Attorneys Helping Texas Families Settle Wills

Probate attorneys come across a fact pattern that is much more common than one might think: A Texas resident promises to include another in his or her will, and then either fails to do so, or initially fulfills the promise but later changes the will to avoid the gift. Is the promise to make a gift within a will enforceable in Texas? As is often the case, the answer depends upon the circumstances.

Estate Code Ann. § 254.004

Generally speaking, Texas Estates Code § 254.004 controls this situation. Subsection (a) of the statute provides that a contract to make a will or devise, or not to revoke a will or devise, may be established only by:

  • A written agreement that is binding and enforceable; or
  • A will stating that a contract exists, and indicating the material provisions of the contract.

An oral promise is insufficient. Even a written promise, standing alone, will generally be unenforceable since such a mere promise does not ordinarily constitute a contract. A contract requires consideration (something of value, such as a service or other action) to flow from both parties.

Recent Texas Case Illustrates the Need for Written Contract

Consider a recent case, In re Estate of Gilbert, 04-16-00641 (Feb. 8, 2017). There, a woman was a man’s romantic partner for almost 17 years. She contended that she “sold” him her house in exchange for Jack’s promise to execute a will naming her as the sole beneficiary of his estate. The man then executed such a will. Two years later, the man revised his will but again named the woman as his sole beneficiary. Later, the woman executed a gift deed transferring an unimproved half-acre lot to the man also in reliance on his promise to name her as his sole beneficiary. When Trudy and Jack ended their relationship seven years later, the man revised his will, naming his son as his sole beneficiary. He died about four months later.

When the will was admitted to probate, the woman objected, claiming that she was the beneficiary of a “constructive trust” of all the man’s property. The court held that her claim was barred by Estates Code Ann. § 254.004. There was no written contract that could be enforced and the couple’s “deal” had never been specifically included in a will.

What About Joint or “Reciprocal” Wills?

Section 254.004 contains a second provision related to joint or reciprocal wills. These are quite common: A husband and wife will have wills drafted by an attorney in which each makes the other the primary or sole beneficiary. The issue sometimes arises as to whether such an action constitutes a contract between the couple such that one or the other is later barred from making changes. Under section 254.004(b), the execution of a joint or reciprocal will does not constitute by itself sufficient evidence of a contract. Unless the will specifically refers to a contract between the two persons that would prohibit changes, an amendment or even a revocation of the will would be allowed.

Romano & Sumner: Skilled, Experienced Attorneys

Texas BarToday Top Ten BadgeHave you been putting off the making of an appropriate will to handle the transfer of assets at your death? Have you considered the problems that might be caused if you are vague in dealing with your assets? The probate attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients in all sorts of estate and trust matters. While we have assisted clients in the handling of many routine matters, we have also successfully represented parties in complex litigation.

At Romano & Sumner, we pride ourselves not only on our professionalism, but also upon our client service. We know that each situation is unique. We return phone calls within one business day. We keep our clients well informed as to the status of their case. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.

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    Romano & Sumner, PLLC

    Romano & Sumner, PLLC