Promise To Establish A Trust In The Future

The general rule in estate planning is that if something is not in writing it usually will not be legally valid.  For instance, Florida law requires a Will or trust must be in writing to be effective.  However, one question we often receive is if a promise to create a will or trust is enforceable by a court?

The answer is a promise can be enforceable. However, certain conditions would have to occur.  To further explain, the promise would have to meet the formal requirements of a contract.  A contract, whether written or oral, must have three elements to be enforceable.

Elements of a Contract in Florida include: Offer, Acceptance, and Consideration

The elements of a contract include an offer, acceptance, and consideration.  An offer is an objective manifestation by the person making the offer to another person with the intent to  accept.  Acceptance is an objective manifestation by the offeree to be bound by the terms of the agreement.  Consideration is a mutual exchange of detriment and benefit between both parties.

Normally a promise to do something isn’t enforceable.  An example of an unenforceable promise will be if Jack promises Jill that at some point in the future he will sign a Will leaving 70 percent of his estate to her.  There would be no consideration because is not an exchange benefit and detriment between the two parties.  In this case, only Jill would be receiving a benefit, the inheritance, and Jack would receive no benefit and is acting only to his detriment.

Mutual Consideration regarding a Contract

Therefore, the only way a promise could be enforced is if another party made a return promise.  This type of mutual promises occurred in the case of Ferguson v. Carnes, (Fla. 4th DCA April 3, 2013).  In this case, a mother frequently threatened to disinherit her son and daughter.

The brother alleges that he and his sister agreed that  “rolling the dice” on who would be in their mother’s good side and receive an inheritance would be too risky.  Instead, they agreed to split their mother’s inheritance equally regardless of what the Will stated.  The deal was never put into writing.

The son was left out of the mother’s will after she died.  The brother asked his sister to keep their deal, and she refused.  The sister filed a motion for summary judgment and claimed the deal could not be enforced because there was no consideration between the two parties.

The court disagreed with the sister and found the promise was enforceable because there was a consideration.  Here, each party agreed to split their respective inheritances with the other, and each person gave up the possibility to inherit more than the other.  Therefore, a promise to create a trust in the future may be enforceable if mutual consideration is given between the two parties.

When it comes to Jacksonville estate planning and Florida Probate matters most things must be in writing to be effective.  However, a promise to leave someone an inheritance may be enforceable if the agreement was made with mutual consideration.  For more information on Jacksonville probate litigation or estate planning contact The Law Office of David Goldman PLLC today at 904-681-1200.

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