Q&As

If A and B enter into a Will contract whereby A promises to leave property (land) to B in A's Will and B provides consideration for the same, what is the position if B unexpectedly dies first? Can B's estate enforce the contract and if so how, bearing in mind A is still alive?

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Produced in partnership with Oliver Hilton of Radcliffe Chambers
Published on LexisPSL on 19/09/2016

The following Wills & Probate Q&A produced in partnership with Oliver Hilton of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • If A and B enter into a Will contract whereby A promises to leave property (land) to B in A's Will and B provides consideration for the same, what is the position if B unexpectedly dies first? Can B's estate enforce the contract and if so how, bearing in mind A is still alive?

The courts have long recognised as effective and enforceable contractual promises to make or not to revoke Wills. A may thus bind himself personally as to the contents of his Will and may bind his assets so that his personal representative must give effect to such agreement in favour of B at the expense of the beneficiaries under any Will or intestacy taking effect contrary to the contract.

Enforcement for breach is usually by the contractual remedies of damages or specific performance (although usually in relation to the asset in question) or, in relation to promises of specific legacies, pursuant to a trust long recognised as arising by virtue of the contract of the property in question.

In order to be enforceable the following criteria must be met:

  1. there must be a legally enforceable contract at law, namely offer and acceptance coupled with consideration (or by deed)

  2. there must be certainty of intention and the obligation, a mere statement or expression of future intention, representation, hope or desire not being sufficient

  3. the subject matter of the contract must relate to a specific amount, share of residue or property and be ascertainable with sufficient certainty, and

  4. in so far as the contract relates to land, it must comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989 (ie contract signed in writing

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