Probate actions—Will contracts
Probate actions—Will contracts

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Probate actions—Will contracts
  • Will contracts
  • Certainty of subject matter
  • Certainty of obligation
  • Will contracts and marriage
  • Enforcement
  • Defeating the promise

These are not probate actions within the definition set out in part 57.1 of the Civil Procedure Rules 1998 (CPR) but they are, necessarily, matters with which personal representatives may be forced to deal with and/or answer through the courts.

Will contracts

Wills are by their very nature revocable. However, merely because a Will is revocable does not preclude a testator from binding themselves to its contents in relation to a third party or parties. Having committed their assets by that agreement, their personal representatives become trustees for the performance of that agreement. The agreement could be and generally is, at the expense of the beneficiaries under their Will or intestacy. However, as with any contract, there must be a binding agreement by the testator to dispose of their assets in a particular manner. In order for such a dispute to get off the ground, two certainties are required:

  1. certainty of subject matter

  2. certainty of obligation

Should the subject matter of the agreement be real property and made after 27 September 1989, that agreement must also comply with the contractual formalities relating to the disposition of land.

Certainty of subject matter

The gift must be capable of being easily and unambiguously identified. Clearly, the gift of a legacy with reference to a specific amount or of a piece of land specifically defined is obvious. However, there have been

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