Florida Probate, Trust & Guardianship Litigation

Agreement to Make a Will

In many probate disputes, one party will claim that the party and the deceased had an agreement to make a will, whereby the deceased had agreed to leave the person all or a portion of the estate.

Florida probate law, at Section 732.701(1) sets forth the general rule for the enforceability of agreements to make wills, as follows:

No agreement to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not to make a devise shall be binding or enforceable unless the agreement is in writing and signed by the agreeing party in the presence of two attesting witnesses. Such an agreement executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where the agreement was executed, whether or not the agreeing party is a Florida resident at the time of death.

If this looks pretty much like the rules for “will formalities,” which require that the testator sign the will in the presence of two witnesses, that’s because it is substantially the same.  This is not surprising, given that will formalities could otherwise be defeated by claimants coming to probate court and contending that, even though the will does not make a bequest to the claimant, the deceased and the claimant had an agreement to make such a bequest.  If such claims could be established without the same level of formality, the procedure would be easily abused and could ultimately undermined the basis for having witnessed wills in the first place.

If a claimant really does have an agreement to make a will in his or her favor, how does one claim the benefits?  You might assume that you would go to the probate court, show the agreement, and then the terms of the will would be altered to comply with the terms of the written agreement.  In a trap for the unwary, a claimant is required to file a creditor claim against the estate to enforce an agreement to make will.  That because the agreement to make the will does not make the will invalid or void.  Instead, the claimant is essentially bringing a breach of contract claim against the estate – the deceased breached the agreement to make a will, so the estate must pay, in the form of a creditor claim

The Florida Supreme Court, in the case of Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991), held that the filing of a creditor claim was necessary for the claimant to receive anything pursuant to the agreement to make the will. As explained by the Court:

Claims against an estate are not limited to obligations of the decedent that could have been enforced against him while living. Claims are defined as “liabilities of the decedent, whether arising in contract, tort, or otherwise, and funeral expenses.”  Section 731.201(4), Fla. Stat. (1985). The nonclaim statute, section 733.702, includes claims “whether due or not, direct or contingent, or liquidated or unliquidated.” A contingent claim is “one where the liability depends on some future event, which  may or may not happen, which renders it uncertain whether there ever will be a liability.” Van Sciver v. Miami Beach First Nat’l Bank, 88 So. 2d 912, 914 (Fla. 1956). The claim against Spohr’s estate was a contingent claim. 

Accordingly, a creditor claim was required to be filed.  The Court further held that the filing of the lawsuit against the estate was not enough (although was required).  The claimant was required, first, to file a creditor claim against the estate.  The lawsuit was not a proper or valid substitute for the filing of the creditor claim.

In sum, if a person has an agreement to make a will that complies with the requirements of Florida law, file the creditor claim within the required time frame , and then file the lawsuit against the estate, in the civil division of the appropriate court, if the estate files an objection to the claim.

Learn how a Florida probate lawyer can help you.

Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

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(561) 842-4868


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