The Better Chancery Practice Blog

A contract to devise property by will is enforceable under Mississippi law. It’s not something one sees every day, but it is something one bumps into every now and then.

Take the case of Hall v. Lewis, decided February 12, 2013, by the COA, a most appropriate case to look at on Valentine’s Day.

Howard Hall and Varnell Lewis were in love. They had been involved in a romantic relationship for several months when, in 1998, Howard purchased a piece of property in his sole name and built a home on it at his expense. At the time of trial in this case, many years later, the property was valued at $80,000.

In 1999, Howard and Varnell, still lovebirds, executed a document entitled “Intervivous [sic] and Testamentary Contract” [is the proper use of Latin phrases yet another thing they’ve stopped teaching in law school?] and each executed a will. The contract provided that Varnell would have a life estate in the property, or have one-half of the proceeds if sold during her lifetime, or have a life estate in any property acquired to replace the property. The agreement required both of them to execute a will contemporaneously to effect its terms. The agreement also provided that it “shall remain in full force and effect and may not be changed by either party,” and “a violation of this agreement may result in a suit for damages for the value of the property.”

By 2005, Howard and Varnell, alas, were out of love, and they parted ways. Howard changed his will to make his grown children the sole beneficiaries and devisees, cutting Varnell completely out.

In 2007, Varnell tried to move a mobile home onto the property based on her contract rights, but Howard refused. Varnell filed suit to enforce the contract, and the chancellor ruled in her favor that it was, indeed, an enforceable contract. Based on the final sentence of the contract as to damages, the judge awarded Varnell a judgment for $40,000 against Howard, and ordered that, upon payment of that amount, Varnell’s right to a life estate would be extinguished. Howard appealed.

After disposing of Howard’s assertion that he did not actually sign the contract, Judge Ishee’s opinion states:

 ¶10. Additionally, Mississippi law provides that a contract to devise or bequeath property by will is enforceable. Williams v. Mason, 556 So. 2d 1045, 1048 (Miss. 1990) (citing Trotter v. Trotter, 490 So. 2d 827, 830 (Miss. 1986) (citation omitted)). With regard to oral promises to devise property, the Mississippi Supreme Court has held that “[a] will, when written in conformity and compliance with the agreement, was a consideration which belonged to the appellee. The testator had no right to revoke it, and its attempted revocation, if deliberately made, constituted a fraud upon [the appellee.]” Johnson v. Tomme, 199 Miss. 337, 347, 24 So. 2d 730, 732 (1946).

¶11. Here, not only did Hall’s and Lewis’s wills reflect the agreement between them, the agreement itself was written by an attorney, signed by both parties, and notarized. This constitutes “clear, definite[,] and certain evidence” of the parties’ intentions. Trotter, 490 So. 2d at 830. Hall’s assertion that the contract is unconscionable is, therefore, also meritless. Accordingly, we cannot find error in the chancery court’s enforcement of the contract.

As illustrated in this case, a contract to bequeath or devise property by will is one of those planning tools that can be used to help unmarried parties to formalize their relationships, as I have discussed here before. You will want to be sure you advise them both in advance, in writing and acknowledged by each of them, that the contract may not be unilaterally rescinded later.

Another interesting point in this case is that the appellant’s 19-page brief cited not a single authority in support of the argument. As the opinion pointed out, “Failure to cite authority to support an argument renders an issue procedurally barred.”

Finally, it’s a hard but immutable principle of law that falling out of love is simply not a reason to abrogate any legal agreement. Happy Valentine’s Day!

Tagged: contract for will, testamentary contract