How to Enforce a Contract to Make a Will in Montana

Montana adopted the Uniform Probate Code in 1974 and under the state’s provisions a contract to make a will is enforceable. The suit must be brought before a court of general jurisdiction, however, instead of in a probate court.

In Estate of Cooney, 2019 MT 293, the Supreme Court of Montana ruled that though the statute was within the probate code, a district court does not have jurisdiction to hear a case pertaining to a succession contract – a valid contract to dispose of his property by will. The case involved a man that left all of his property to one of his four children, though him and his ex-wife entered into a  marital property settlement agreement which provided that he was required to leave his real property to his children, in equal shares. Two of his children moved to invalidate the portion of the will leaving the real property to only one child, arguing breach of the agreement and fraud on the court.

“If a party to a succession contract fails to carry out the promise to make a valid will, courts of equity will grant relief in the nature of specific performance by compelling the personal representative, the heirs, devisees, or legatees to hold the property as trustees for the benefit of the promisee.” The Court continued, :The equitable remedy of specific performance thus must be sought in a court of equity; it may not be administered by the probate court in a direct proceeding for that purpose. “

See How to Enforce a Contract to Make Will in Montana, Probate Stars, January 8, 2020.