Estate of Gilbert, 513 S.W.3d 767 (Tex. App.—San Antonio 2017, no pet.).


Contractual Wills


After two romantic partners broke up, Man changed his will which previously left his estate to Woman by naming Son as his sole beneficiary. After Man died and his will admitted to probate, Woman claimed that Man breached his contract to make a will naming her as the sole beneficiary and was promissorily estopped from changing his will. The trial court concluded that as a matter of law she had no viable cause of action. Woman appealed.


The appellate court affirmed. Man’s oral promise to name Woman as his sole beneficiary is not enforceable. Estates Code § 254.004 provides that to establish a contract to make a will, there must first be a written binding agreement or terms of a will stating that a contract exists and its provisions. Because no writing exists, no contractual will could be established. Likewise, the court rejected Woman’s promissory estoppel claim explaining that “section 254.004 bars a claim for promissory estoppel on an oral promise to devise property that is disposed of in a will.” Gilbert at 772.


Moral:  A contract to make a will must be memorialized in a writing, either an enforceable contract or the will itself.