§ 341 CONTRACTS RELATING TO WILLS

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 341 Contracts relating to wills

The SCPC allows proof of a contract to make a will, not to make a will, to revoke a will, not to revoke a will, or to die intestate only if the will states the material provisions of the contract, if the will expressly refers to the contract and extrinsic proof of the terms of the contract exists, or if the decedent signs a writing which evidences the contract and extrinsic proof of the terms of the contract exists.²⁵² The Code's provisions apply only to contracts made on or after July 1, 1987, the effective date of the SCPC. Thus, section 2-701 allows the enforcement of an oral contract entered into before July 1, 1987.

Section 62-2-701. Contracts concerning succession.

A contract to make a will or devise, or to revoke a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date of this act, can be established only by (1) provisions of a will of the decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract and extrinsic evidence proving the terms of the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

The provisions of section 2-701 affect only matters of proof. Thus, the South Carolina common law remains determinative of the efficacy of the contracts.²⁵³ The South Carolina common law recognized the ability of a decedent to contract with respect to the disposition of his estate. The cases required the contract to "be established by the most satisfactory proof and after the strictest and most thorough examination of all circumstances. . . ."²⁵⁴

Two basic paradigms occur. The first, the so-called contract to will pattern, involves a testator who offers to make a will in favor of someone who provides consideration. The probate court can enforce the contract in equity.²⁵⁵

The second paradigm involves the so-called contract not to revoke a will. In this pattern, two testators, typically a married couple, make mutual and reciprocal wills. The issue is whether either may revoke his or her will, which effectively rescinds the contract unilaterally. Although subject to contrary opinions, apparently the general rule is that a party to a contract not to revoke may revoke the will, and thus unilaterally rescind the contract, before the death of the other contracting party.²⁵⁶ The general rule is presumably founded on the policy that a contracting party may not effectively revoke a will after the other contracting party has died in reliance on the contract. South Carolina apparently imposed an additional requirement to allow unilateral rescission and revocation: The nonrevoking party must have...