As a Certified Elder Law Attorney, I advise that it’s always best for a person to write down

one’s intentions for their property when they die. However, many people still die

intestate (without a will), and their intentions aren’t known. Often, however, these

people’s heirs may make a claim that the deceased orally stated what their intentions

were. These assertions may very well be true, but often, they aren’t enforceable. There

are, however, reasons why a court might enforce an oral estate agreement.

What is an oral estate agreement?

An oral agreement is a contract made between two people, but not documented. Courts

will enforce oral contracts when there is enough evidence to show that these contracts

actually existed and only if the contracts are lawful. Most of the evidence that a contract

exists is based on whether the parties acted as if it existed.

When it comes to contracts, actions speak louder than words.

An oral contract can be proven to have existed if the parties behaved as if the contract

existed and neither party corrected the other. Usually, the evidence is stronger if both

parties behaved as if the contract exists. However, if one party acts as if the contract

exists and makes some sort of sacrifice or limits their ability to do something based on

the contractual promise, the court may enforce the contract.

For example, if a party claims that she made an oral agreement to inherit a farm, and

that she can show that over the past decade, she has been learning about agriculture

and has been buying farming equipment, this can show that she truly believed that she

would inherit the farm. Now, if the original owner also showed signs that this oral

contract was real, such as telling people about it, then the courts may determine that

this oral contract is legitimate and should be enforced.

The courts will not enforce an unlawful oral contract, no matter how much

evidence shows that it exists.

Unlawful doesn’t necessarily mean illegal, but rather anything that is not sanctioned by

law. A common unlawful (but not illegal) oral estate agreement is over who will care for

minors or disabled adults after their primary caretaker and/or parent passes. For

example, a parent may wrongly try to pass custody of an adult disabled child to another

child, not realizing that no one can legally have custody of an adult. This can create

problems if there are no other plans for the disabled child. Thus, even if there is

evidence in the form of the parties behaving as if the contract was real, if it was

unlawful, it cannot be enforced.

Written contracts are much easier to enforce than oral ones.

If you have an oral agreement with someone over an inheritance, it’s better to get it in

writing now than it is to attempt to get the court to enforce the oral contract. If you need

help getting the agreement in writing or with creating an estate plan, contact our office today.