Contract as Addendum to Will: is it a Contract or part of the Will?

Discussion in 'Estate Planning, Creating Wills & Trusts' started by bgp5740, Nov 18, 2011.

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  1. bgp5740

    bgp5740 Banned

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    Hello,

    I would have posted this under the category “Contract Law” but could not find one. Therefore I'm posting here.

    We are in the middle of a court case involving a lengthy Complaint with multiple Defendants and Plaintiffs. The case comes down to whether or not a Contract (involving property) between one of the Defendants and one of the Plaintiffs is indeed a Contract. The Contract was entered into as a “binding addendum to the Will” of one of the Defendants and was entitled “Addendum to the Will”.

    At the time of the writing, both parties understood that it was a contract and it was not to go into effect unless a) the Will was contested or b) the Defendant party of the contract changed the will that was written at the same time as the contract. The Judge is inclined to rule that the Addendum to the Will is not a separate Contract and is a part of the Will and therefore the Defendant party of the Will can change both documents. The Plaintiffs maintain that even though it was entitled Addendum to the Will, it is a separate contract. In fact, at the time of the writing of both documents, each was placed in a sealed envelope and sent Certified Mail to their CPA.

    The question I'm asking therefore, even though the Contract is entitled “Addendum to the Will”, since it was understood by both parties to be a contract and treated as such, is it a contract or is it part of the Will? Thanks for any feedback.
     
  2. fredrikklaw

    fredrikklaw Moderator

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    The writing decides!

    If ever there were 2 documents that occupied THE complete opposite sides of a legal spectrum, it would be a will and a contract, and to help decided which is which, regardless of what their maker(s) has opted to label them, you need only look to the definition and the essential elements (or the building blocks if you will) of each document.

    So basically, their respective construct determines what the document is!

    Will is of course, and to mention the obvious here, an instrument by way of which a person conveys and bequeaths real and personal property to heirs, issues, and others so identified therein, and it (the will) does so without either looking to any reciprocation or undertakings by the grantees. In other words, a grantee is the recipient of what is for all intents and purposes a gift.

    A contract on the other hand, is an instrument which derives its legal potency, makeup, and enforceability as a result of the coming together of a myriad of essential elements, chiefly amongst them being offer, acceptance, capacity, conditions, consideration, and of course, the presence of a promise or a set of promises by the contracting parties to perform as to the terms of the contract.

    There is however one solitary similarity of construct between a will and a contract (and I use the word 'similarity' very loosely indeed) which is Conditions, where a grantor can place a condition that needs only to be satisfied by the grantee in order for the inheritance to attach or remain attached. An example of that would be: “…and the land shall continue to be made available two weeks a year in April for use by the local Cub Scouts at no charge….”

    Therefore, while the consequences for a grantee not satisfying the condition would only be a Reversion of the property, the consequences for a party to a contract not performing a promise or breaching the contract in any way, would be litigation and payment of damages to the aggrieved party.

    So to determine if the “addendum to the will” is really just an extension to the will or indeed a contract, refer to the actual writing of the addendum.

    fredrikklaw
     
    Last edited: Nov 18, 2011
  3. bgp5740

    bgp5740 Banned

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    Contract as Addendum to Will

    Thank you fredrikklaw for your thoughtful and informative reply. My husband (who wrote the complaint) thanks you as well. An interesting side note to the Will/Addendum is, we sent the Will and the Addendum to the Will in separate Express Mail/ Return Receipt envelopes to our CPA with express instructions that the envelope with the Addendum to the Will was not to be opened unless the Will was contested.

    Also, in the Addendum to the Will, the property rights were “permanently and persistently transferred” from Sophie to her son Jesse III, which included a permanent tenancy that she is now trying to rescind by evicting us from one of the properties.

    Update: In the November 17, 2011 Motion/Hearing: Rule 12 to Dismiss and any other outstanding motions, the Judge ruled against us and we would like to file an appeal. Any suggestions? Thank you for any feedback.

    Interesting points on the Judge's ruling:
    1. At a previous hearing (for Defendant Sophie J. Torres' Motion For Plaintiffs To Cease And Desist From Posting Information In The Internet), the judge (Christopher J. Muse) at numerous times during the hearing commented that we had an excellent argument (with the contract, i.e. Addendum to the Will) so why would we, “muddy the waters”, by posting legal documents on the Internet. At the Nov. 17th hearing (below), he completely reversed himself by saying, “words matter” and that calling the contract an Addendum to the Will, made it a part of the Will and therefore, time of performance had not yet arrived. My husband feels that the judge was prejudiced against us because we defended our First Amendment rights and posted information on the Internet (to keep us from being evicted, at that time). And although he ruled for us, he was not happy with us because a previous judge at a previous hearing cautioned us about posting information on the Internet. Judge Muse said that although he ruled in our favor about the right to post on the Internet, to be careful because, “we would have to face someone in a black robe”, and tugged on his robe.
    2. The Motions before the judge (Christopher J. Muse) were three Massachusetts 12 (b) (6) Motions to Dismiss, yet the judge ruled on the “Defendant's Summary Judgement”. If he converted the Motions to Dismiss to Summary Judgement, we were never notified of this. Do we have to be notified?
    3. There were three Motions to Dismiss but the judge ruled on only the Defendant Jesse E. Torres IV's Motion to Dismiss. Are the other two defendant’s (Debtmerica, LLC's and Sophie J. Torres') Motions to Dismiss implied?

    We have the entire case (Massachusetts Civil Docket # BACV2011-00433) posted at the website http://plaintiff.jetiii.com. Documents are posted from oldest to newest at the bottom.

    The judge's final ruling can be found here: http://plaintiff.jetiii.com/Documents/23Nov2011/DefendantsMotions_SummaryJudgement.pdf
     
  4. bgp5740

    bgp5740 Banned

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    The judgment was entered on the docket on Nov. 28, 2011. I've been searching MA Rules of Civil Procedure, Clerk's Guide to Appeals and Clerk's Guide – Motion to stay and cannot find the deadline for filing an appeal or filing a Motion to Stay. Any suggestions?
     
  5. bgp5740

    bgp5740 Banned

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    Thank you again fredrikklaw. Your feedback has been a tremendous aid in writing our Appeal.

    An Update (and a couple of questions):
    We have filed a Notice of Appeal in Massachusetts from the Superior Court Ruling allowing the three Defendants' 12(B)(6) Motions to Dismiss for Failure to State a Claim, which the Court, in its ruling referenced and ruled on as a Summary Judgement Motion (we know they can convert 12(B)(6) to a Summary Judgement). The entire case and can be found at our website at: http://plaintiff.jetiii.com.

    We are reading the MA Appellate Procedure Rule 3 and MA Appellate Procedure Rule 4 as well as the Clerk's Guide to Appeals for Lawyers & Self-Represented Litigants and it's still not clear. Our questions are, how do we get copies of the tapes and transcripts from the three hearings that were held? Also, if we file an Affidavit of Indigency, do we have to file a motion in the Superior Court with it?

    Quick Background: The reasons we want the tapes is because of the openly hostile statements made during the hearings surrounding a First Amendment issue of posting Public Court Documents on the Internet. The judge repeatedly stated that we had a "good argument" and "why would we want to muddy the waters with these issues" and that we would “soon be answering to a Black Robe". When my husband told him that without the posting of the documents, we would have been put on the streets, he didn't care. Of note, the First Amendment protected us just as it was intended, but appears to have cost us round one of the case. Judge Muse made many, many such prejudicial statements in the three hearings, hence our desire to properly request the tapes/transcripts. He also made numerous statements which reflected his disdain of our use of Quicken Willmaker and of appearing Pro Se.

    We did this to protect ourselves from cronyism between the Falmouth Police Department and a former police officer who is now an attorney and representing the other side.

    Thank you for taking the time to read our post. Any help would be appreciated.
     
  6. bgp5740

    bgp5740 Banned

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    This case involves over $1,000,000.00 in Real Estate (in this market).
    The Contract is undisputed by the other side.

    We carried it Pro Se and are now looking for a top notch attorney.
    Contact: 617-418-4497 and jadams@jetiii.com.

    The case is located at: http://plaintiff.jetiii.com/
     
  7. army judge

    army judge Super Moderator

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    Courts and litigants are generally immune from freedom of speech issues.

    That cuts both ways.

    A court room is one of a few places where lies and liars are protected.

    You can forget a free speech argument in court rooms.

    Perhaps you've heard a judge tell a litigant in a court room to calm down or shut up?
    Have you ever heard a judge tell lawyers to step back, or move on????
     
  8. thelawprofessor

    thelawprofessor Administrator Staff Member

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    If the case involves over $1mm in real estate, why did you go forward with this case Pro Se? Considering all that has happened, I don't know of an attorney that would want to pick this up after it seems the underlying documents in issue, a trial and an appeal have all been lost.

    I'm not saying you don't have a case. Reading the little I did makes me speculative. First impression doesn't look that great, that the plaintiffs had someone create a beneficial will and then sign a separate addendum, all which plaintiffs created. There may be much more but the judge certainly seems to have focused on that part. Are you looking for an appeal to the third level of the state court system? It seems you've already had two strikes. Virtually nobody takes these appeals on contingency fee, if that is what you are seeking. I'm not sure there is a case, unfortunately, based upon what I've read above.
     
  9. bgp5740

    bgp5740 Banned

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  10. Unregistered

    Unregistered Guest

    Unfortunately all legal questions shulod be answered by an attorney. However, my layman opinion is a landlord is able to raise the rent as much or as little as they want since there is no governmental rent control in Texas. Typically rent changes will be based on changes in demand for the apartment.
     
  11. Unregistered

    Unregistered Guest

    if you have an addendum you may have a deal alderay. If that is case then you have probably been told a certain date you need to close by. It is likely 30 days away.I am on day 73 of a short sale offer and still waiting to hear final lender approval. Once that occurs an addendum will be drafted for us to sign.References : Was this answer helpful?
     
  12. Unregistered

    Unregistered Guest

    At last! Someone who understands! Thanks for posntig!
     
  13. Unregistered

    Unregistered Guest

    I tohught finding this would be so arduous but it's a breeze!
     
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