November 22, 2005
Testamentary Promise is Not a Contract Claim
A claimed oral "contract" that a testator would leave money to a nephew was not a “creditor’s claim,” but rather a “contest” of the will’s provisions, according to a recent decision by the California Court of Appeals.
In the case, Nephew claimed that Aunt and Uncle, with whom he had lived, had promised to leave him 50 percent of their joint estate. Uncle died first, and Aunt subsequently changed her will, giving Nephew considerably less. Aunt also put a “no contest” clause in the will, providing that if anyone challenged the will, he or she would lose all rights under it. Nephew nevertheless filed a claim, based on the oral contract, noting that contract claims are by statute not within the scope of a “no contest” clause.
One interesting thing about the claim is that the court recited no consideration for the purported “contract.” The court didn’t go off on that ground, however, finding that where the alleged contractual promise is to leave money, a claim based on it is not a “creditor’s claim,” but rather a challenge to the distribution system itself. Accordingly, it fell within the “no contest” clause. (Although the court noted that the case was “more complex” than previous decisions, and that there was no case exactly on point, it nevertheless decided not to publish it.)
Zwirn v. Schweizer, 2005 Cal. App. Unpub. LEXIS 10429 (2d Dist. Nov. 14, 2005)
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