Agreement Not To Contest A Will

Robert Ray

Agreement not to contest a will.Background

Although this blog is only about Texas law, a recent case out of Delaware dealt with an unusual issue and the results should be the same in Texas if the issue ever comes up. The Delaware court in 2015 was asked to decide if an agreement not to contest a will would support a suit for damages. The facts recited in the opinion are set out as follows: “In his complaint, Paul alleges that their mother had wanted to renounce the 2004 Will and create a new will leaving Paul the family home and 50 percent of her remaining estate; however, she was prevented by Charles from doing so. After their mother’s death, Paul confronted Charles about his actions, and Charles agreed to honor their mother’s wishes and share her estate with Paul in exchange for Paul’s agreement not to contest the 2004 Will.”


When Charles breached the agreement, Paul filed a breach of contract suit against Charles for damages. Charles asked the court to dismiss Paul’s suit because the alleged contract between Paul and Charles was not supported by consideration. A valid contract has to have an offer, an acceptance and consideration. Charles claimed that agreeing not to contest a will is not sufficient consideration to support the alleged contract.


The court agreed with Paul’s right to sue under the contact holding that an agreement not to contest a will can provide consideration sufficient to support a contract, assuming the person has a legal right to contest the will. Since this case involves an alleged oral contract, the outcome will hinge upon the credibility of the witnesses. Weber. Where a person does not have a legal right to contest the will, an agreement not to contest the will is not valid consideration. Montgomery v. Grenier, 117 Minn. 416, 136 N.W. 9.


The court cited many well know general principles of contract law in support of its decision rather than Delaware’s probate law. Therefore, the issue in Texas of an agreement not to contest a will should have the same results as the Delaware case. On the other side of that coin though, an agreement not to contest a will in Texas should be enforceable against the person who agreed not to contest the will if he breaks the agreement and files suit contesting the will.

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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.


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Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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