Contract Not To Change Will Is Enforceable Against Estate


Any competent adult can sign a will disposing of his or her property—unless he or she has agreed not to do so. Though they may seldom be used, the law of most states permits individuals to enter into a contract not to change their wills (or, for that matter, to write new wills). In most cases such contracts may have to be almost as formal as the wills themselves, but once the formalities are met the parties can bind themselves and their heirs and devisees.

Bernard W. Abrams and Doreen Massell made such a contract. When Mr. Abrams moved into Ms. Massell’s Atlanta, Georgia, home, they began to discuss what would happen to one of them if the other should die. Since they were not married and had no plans to get married, they wanted to have a clear understanding of what to expect from one another.

In 1993 Mr. Abrams had signed a new codicil to his will, leaving $400,000 to Ms. Massell. In 1996, she signed her own codicil, which left the home in which the couple lived to Mr. Abrams. Later in 1996 the two of them decided to enter into an agreement not to change their respective wills.

With the help of an attorney Mr. Abrams and Ms. Massell prepared and signed a contract that each would agree not to write a new will without the other one’s permission. They signed the agreement and, presumably, congratulated themselves on their good, and thorough, planning.

Two years later Mr. Abrams went to visit his brother and never returned. He sent word back to Ms. Massell that he did not want to have any further contact with her, and he wrote a new will leaving everything to his family.

Ms. Massell sued Mr. Abrams for violating their agreement. He died while the lawsuit was pending. His family sought to have his new will—the one disinheriting Ms. Massell—admitted to probate, but she insisted that the estate owed her $400,000. Mr. Abrams’ family members, meanwhile, sought to invalidate the agreement by insisting that it was based on an “immoral relationship.”

The Georgia Court of Appeals rejected Mr. Abrams’ family’s claims. The court decided that the agreement was just what it purported to be—an agreement between two people who hoped to live together and support one another for the rest of their lives. Mr. Abrams had no authority to sign a new will unless he first secured approval from Ms. Massell. Abrams v. Massell, August 14, 2003.

Arizona law would also have recognized the contract between Mr. Abrams and Ms. Massell. Such an agreement must be in writing and signed, but would then be enforceable. Oddly, the contract to make (or to not make) a will is both easier to execute and harder to break than the will itself. The contract to make a will requires only a signature (where a will, in most cases, requires a signature and two witnesses). And since the contract is an agreement, it takes both parties to change (whereas a will, in most cases, can be unilaterally changed by its author).

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