Kentucky Bankruptcy Law

Counsel with Care

Contracts within Wills:

A fairly common practice in writing wills has been promising a care provider that, “If you continue to take care of me in my old age, I will leave you such and such property.” The will itself may or may not get changed to reflect the gift (devise, bequest) of that property. The will may or may not reference the promise in connection with that gift. Even if the will expressly gives the promised property, wills have no legal effect until the testator dies and the will is probated. So, a later change to the will can erradicate that promised gift.

However, even if the will is later changed or never makes the promised gift, that is not the end of things. An express or implied contract was created. Depending upon the details of the circumstance, a cause of action on that contract arises and the person who provided the care for the testator as promised can at least recover quantum meruit damages. This is a legal term that basically means the value of your services. This may end up being less than the promised property, but it is better than a bag of bitterness.

The statute of limitation for a contract not in writing is 5 years under KRS 413.120 and KRS 413.090 gives a 15 year statute of limitation on written contracts. If you believe the above situation applies to you, seek the counsel of an attorney to see if you do, in fact, have a cause of action and to see how the statute’s of limitation apply to your particular situation.

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March 6, 2007 - Posted by | Estate Planning

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