§ 342 POSSIBLE NON-CONTRACT ENFORCEMENT

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 342 Possible non-contract enforcement

Generally, to enforce a promise concerning succession, a court requires the existence of a contract. The traditional method of enforcing a contract concerning succession reconciled the differing goals of the law applied to wills and to contracts. According to trust and estate law, a competent testator maintains the right to make, amend, or revoke a will until death.²⁶⁵ Contract law is designed to enforce contracts. In the case of contracts concerning succession, the compromise between the two policies is to probate whatever will, if any, was last executed by the decedent before death, but to effectively enforce the contract through the imposition of a constructive trust.²⁶⁶ The usual rules of contract formation apply, and mutual consideration is necessary.²⁶⁷ A promise for a promise would constitute sufficient consideration, but the lack of consideration would preclude a finding that a contract exists. Thus, cases in which testators mutually make promises concerning succession—creating enforceable contracts—are distinguishable from cases in which no consideration passes. Based on this distinction, courts have declined to enforce mere moral obligations, as opposed to actual bilateral promises, that otherwise fail to suffice as consideration for a contract.²⁶⁸

However, in South Carolina, a party may be able to effectively enforce a moral obligation, at least in the guise of a fiduciary duty. In Chapman v. Citizens and Southern National Bank,²⁶⁹ the decedent held at the time of her death a testamentary general power of appointment over a testamentary trust created by her husband. The decedent's marriage was a second marriage for both spouses, and each spouse had children by a prior marriage. The testamentary trust provided that, in default of the exercise of the power of appointment, the trust assets passed to the husband's children. The decedent's will, however, exercised the power and appointed the property to her children.²⁷⁰

The court noted that the decedent was granted a general power of appointment to comply with the estate tax laws in effect when the husband signed his will.²⁷¹ According to the court, numerous letters in the record established that the decedent had promised her husband that she would not exercise the power.²⁷²

The court held that a confidential relationship existed between the decedent and her husband because he trusted her to act "relating to the corpus of his estate after his . . . death" and that she had "the power to abuse the confidence" for her own benefit.²⁷³ It determined that the decedent had promised her husband that she would not exercise the power of appointment, so that the trust would pass to his children. Because the confidential relationship...