Promises! Promises!—California Law Allows Family Members and Friends to Enforce a Decedent’s Oral Promise to Make a Will or Trust

Under California Probate Code section 21700 a Decedent can make an enforceable oral contract to make a California Will or California Trust.

Here’s how this situation usually arises. There is an older family member—we’ll call him Tom—who needs some additional care for the last few years of his life. Tom reaches out to his best friend Ken, who is a neighbor and lives across the street from Tom. Tom tells Ken, “If you will check in on me from time to time, take me to medical appointments, help me balance my checkbook, cook a meal for me every now and then, I will give you all of my belongings when I die.” Ken, relies on Tom’s promise and performs his part of the bargain by taking extra care of Tom as he ages. Tom ultimately dies before getting around to creating a California Will or California Trust evidencing his promise to Ken.

Almost immediately Tom’s estranged son, Sal, comes into the picture and says he inherits all of Tom’s property because Tom did not have a California Will or California Trust. Sal tells Ken to “screw off” and makes his claim to Tom’s property by filing a Petition for Probate asking the Probate Court to confirm all of Tom’s property is now Sal’s.

Ken calls a San Francisco will & trust attorney and finds out that generally speaking a gift made by a California Will or California Trust must be in writing. But, the attorney continues to say there is the possibility Probate Code section 21700 can save the day. The attorney asks Ken if Tom made a promise that caused Ken to change his position in life. Ken tells the attorney that he took a lot of his personal time to check in on Tom, take Tom to the doctor, and balance Tom’s checkbook several times a month. Ken said he would not have regularly done these things for Tom, and only did them because Tom promised Ken all of his property when he died.

The attorney tells Ken he has some fairly good news. Under California Probate Code section 21700 Ken can file a creditor’s claim in Tom’s estate demanding that he be given all of Tom’s property as was promised. If Sal rejects Ken’s creditor’s claim, Ken simply files a lawsuit in the Probate Court to enforce Tom’s oral promise to give Ken all of Tom’s property. Voila!! Ken is well on his way enforcing his rightful claim to Tom’s property.