Beyond The Will, Client Compass

Learning from Famous Mistakes: Part 3 – Oral Promises

December 19, 2019


Pop culture periodicals have been telling us for years that celebrities are “just like us” – they go grocery shopping, they drive their kids to school, they walk their dogs. This holds just as true in the Probate world as in the tasks of everyday life. This multi-part series will examine several famous mistakes that celebrities have made in their Wills and Trusts, and will offer tips as to how we can avoid making those same mistakes.

Part 3. Oral Promises

In Part One of this series, we talked about celebrities who died without putting an estate plan into place.  In Part Two, we discussed celebrities with outdated estate plans that failed to account for changes in life circumstances.  With stories that combine aspects of each of those scenarios, this installment of “Learning from Famous Mistakes” will show us that even the best-intended and well-justified oral promises, if not reduced to proper written form in a new or updated estate plan, are extraordinarily problematic and nearly-certain to lead to litigation after death.

Perhaps the most famous (or infamous) example of this is the tale of exotic-dancer-turned-Playboy-model Anna Nicole Smith and her late husband, billionaire J. Howard Marshall II, who was more than sixty years her senior.  Howard died only 14 months after marrying his much-younger wife, and his estate plan left her nothing; his estate plan also disinherited one of his two sons.  Years of litigation ensued – indeed, the litigation survived Anna Nicole, who died in 2007 at age 39 – even reaching the U.S. Supreme Court. Anna Nicole’s claims were premised on a promise that Howard had allegedly made to her, assuring her that he would give her one-half of his estate, and that he had instructed his attorneys to prepare documents to that effect.  Whether or not the promise was made, and whether or not the instructions were given to Howard’s attorneys, no such documents were executed, leaving Anna Nicole with little more than her own allegations of the oral promise.

Another problematic promise came when Marlon Brando allegedly made his longtime housekeeper “an offer she couldn’t refuse”.  When the legendary actor died in 2004, most of his estate was left to his producer and other associates, but his housekeeper claimed that he had promised her that upon his death, she would receive the home she had taken care of for so many years.  As with the case of Anna Nicole Smith, the promise either was never made, or if it was made, it was not reduced to writing. Litigation ensued.

An oral promise to make a will is not enforceable.  This makes good sense, as otherwise we could be left with multiple people alleging multiple different promises after a person’s death, when the promisor is no longer here to tell us what he really intended.  However, equitable claims related to these alleged “promises” are prevalent in probate litigation and can tie up an estate for many years.  The claims we most often see are as follows:

  • Promissory Estoppel, through which the aggrieved party will allege that he or she was “damaged” by relying on the promise made by the deceased; for example, by giving up certain of his/her own property, or by foregoing other opportunities to earn income or acquire assets.
  • Quantum Meruit, wherein the claimant will allege that he or she provided services to the deceased in reliance on a promise for compensation through an estate plan, and that in the absence of such benefit in the estate plan, he or she is entitled to recover the fair value of the services that were provided.
  • Unjust Enrichment, through which the plaintiff will allege that he or she added value to the decedent’s estate in some way (managing the assets, etc.), in reliance on the decedent’s promise of a post-death share of those assets, and that it would be unfair for the estate to retain that added-value to the plaintiff’s exclusion.

These are some of the most difficult cases to prove, because again, the person who allegedly made the promise is no longer here to tell us whether the promise was made, or what he intended by it.  Difficulty in proving the claims, however, does not stop the claims from being made.  Unfortunately, there is little that we can do to preclude individuals from coming out of the woodwork after death to make these types of allegations; the best protection and the best defense to such future claims would be to have a solid estate plan in place.  From the perspective of the person to whom a promise is made, the clear takeaway is never to rely on such a promise!  As with so many aspects of life and the law, documentation, clear communication, and follow-up is key.

Until next time!


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