Author: Sandy Christopher, JD, CTFA
Senior Trust & Fiduciary Specialist, Wells Fargo Private Bank
In Torres v. Torres (84 Mass. App. Ct. 1117; 995 N.E.2d 1152; 2013 Mass. App. Unpub. LEXIS 1029) the plaintiff, Jesse E. Torres, III (“Jesse”), appealed the ruling of the Superior Court concluding that Massachusetts law prohibits a claim for anticipatory breach of a contract to make a will. The Appeals Court vacated the judgment of the lower court and allowed the suit to go forward, but solely as an action in quantum meruit.
Jesse alleged that he and his mother, Sophie Torres (“Sophie”), had, in 2009, reached an agreement requiring Sophie to leave Jesse certain parcels of real property in her will. The purported contract permitted Sophie to sell or finance the various pieces of property during her life for her own benefit and required any proceeds not used by Sophie to become Jesse’s property upon Sophie’s death. As consideration for this, Jesse relinquished any claim he might have against Sophie or her estate for services rendered, or funds loaned to her, as long as the terms of the ostensible contract were respected. If the terms of the supposed contract were violated, “any monies and interest will become fully due and payable.” In 2011, subsequent to the execution of the alleged contract, Sophie executed a new will, which Jesse claimed was a breach of her contractual obligation to him under the 2009 agreement.
The Court noted that Jesse’s action “purports to raise several questions of first impression, namely whether we recognize contracts not to revoke a will, and whether an action for beach of such a contract is premature until the death of the testator, as in an action to make a will.” However, the Court, in an act of “judicial prudence” declined to address these questions, as it concluded that they were unnecessary to decide in this case, as Jesse had available to him a viable action in quantum meruit. The quantum meruit action was available to Jesse because “the contract specifies that Jesse’s damages will be the very monies and interest he loaned to his parents, whether the litigation is denominated a contract action or an action in quantum meruit, the merits and, if Jesse is successful, the relief, will be identical.”