Section 2-514
A contract to make or not to make a will or devise, or to revoke or not to revoke a will or devise, or to die intestate, if executed after the effective date of this article, may be established only by (i) provisions of a will stating material provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills shall not create a presumption of a contract not to revoke the will or wills.
Comment
The purpose of this section is to tighten the methods by which contracts concerning succession may be proved. Oral contracts not to revoke wills have given rise to much litigation in a number of states; and in many states if two persons execute a single document as their joint will, this gives rise to a presumption that the parties had contracted not to revoke the will except by consent of both.
This section requires that either the will must set forth the material provisions of the contract, or the will must make express reference to the contract and extrinsic evidence prove the terms of the contract, or there must be a separate writing signed by the decedent evidencing the contract. Oral testimony regarding the contract is permitted if the will makes reference to the contract, but this provision of the statute is not intended to affect normal rules regarding admissibility of evidence.
This section does not preclude recovery in quantum meruit for the value of services rendered the testator.
Massachusetts comment
Clauses (i) and (ii) of section 2-514 should present no problem because the testator has either incorporated the key provisions of the contract in the will itself or has sufficiently identified the contract by incorporation by reference or facts of independent significance.
As to clause (iii), the current Massachusetts (Statute of Frauds) law is G.L. c. 259, §§ 5 and 5A. Section 5 reads: "No agreement to make a will of real or personal property or to give a legacy or make a devise shall be binding unless such agreement is in writing signed by the person whose executor or administrator is sought to be charged, or by some person by him duly authorized. . . ."
In Foman v. Davis, 316 F. 2d 254 (1st. Cir. 1963) a daughter allegedly agreed with her father that she would pay for the care of her invalid mother in return for the father's agreement to die intestate. After the mother died, the father remarried and left his estate to his second wife. The plaintiff sued for her intestate share and lost in the District Court, which interpreted § 5 broadly, as though it meant "no agreement about making a will . . ." and, because the agreement was within the statute, the plaintiff's suit was dismissed. On appeal, the First Circuit read the statute narrowly and, because the alleged agreement to die intestate was outside of it, the case was remanded to the District Court for further proceedings on the plaintiff's suit.
In 1965, the Legislature, in response, enacted § 5A of Chapter 259 which reads: "No agreement to make a will of real or personal property or codicil thereto or to make a bequest or devise, or to revoke or not to revoke a will, codicil, bequest or devise, or to refrain from making a will, codicil, bequest or devise or any other agreement relative to making or not making a will, codicil, bequest or devise, shall be binding unless such agreement is in writing and signed by the person whose executor or administrator is sought to be charged, or by some person duly authorized thereunto by him in writing. . . ."
The minor edits to section 2-514 are suggested for the purpose of making it clear that the intention of § 5A is not changed.
The last sentence of section 2-514 reflects Massachusetts law. "Execution of simultaneous wills, while suggestive of a common purpose, without more will not show that the parties entered into a contract to make the wills or to refrain from revoking them. Tweedie v. Sibley (1988) 25 Mass. App. 683, 521 N.E. 2d 1056." G. Newhall, supra, § 334 (1991 Vol. 2 Supp. 97).