Tennessee recognizes a breach of contract cause of action for the breach of a contract as to how, and to whom, assets will be distributed at the death of the promisor. Most often, these claims arise where spouses have made mutual wills, but where the last deceased spouse has breached this contract by changing the terms of his or her will after his or her spouse predeceased. While breach of contract cases related to wills most often arise in the context of mutual spousal wills, they can also arise in other contexts. For example, in Owens v. Church (Tenn. Ct. App. 1984), a breach of contract claim was successfully prosecuted by a niece and nephew whom were promised their aunt’s estate if they took care of her.
In whatever context a breach of contract case to make a will arises, to be enforceable, such a contract must meet the requirements of T.C.A. §32-3-107. That statute is, essentially, statute of frauds for contracts to make wills. Under the statute, a contract to make a will must be established in one of these three ways to be valid: (1) It must be contained in a will and it must include all material provisions of the contract; (2) the will must contain an express reference to the contract and an express reference to the agreement outside of the will which contains the terms of the contract; or (3) there must be a writing signed by the decedent evidencing the contract. Notably, the last prong of the statute allows for the contract to be created wholly outside of the will and without the will making any mention of the contract.
What statute of limitations apply to a cause of action for breach of a contract to make a will? Three different statutes of limitations may apply. Which one applies will depend upon the way the breach of contract is being challenged. The Supreme Court of Tennessee has recognized that a breach of contract to make a will claim may be presented in three different ways. First, it may be brought as a will contest. If so, the two- year statute of limitations for will contests will apply. (That statute begins running on the date of the entry of the order admitting the will to probate proceedings). Second, it may be brought as a claim against the estate of the deceased. The outside limit for filing a claim against an estate is twelve months from the deceased’s death. Third, the cause of action may be brought as a claim for specific performance. In that event, the six-year statute of limitations applicable to breach of contract actions applies.
Claims for breach of a contract to make a will and bequeath assets to the persons or entities agreed almost always arise after the death of the person who is alleged to have breached the promise. However, they can be brought before that time, if the breach is discovered. For example, in the Owens v. Church case, the niece and nephew who agreed to take care of their aunt for life in exchange for her bequeathing all of her assets to them learned, while she was still alive, that she had changed her will and, then, brought suit against her while she was still alive. Not only was this allowable, but also, the court constructed a remedy for them even before their aunt died.