Get It In Writing! Understanding the Ohio Statute of Frauds Part 6: Paying the Debt of an Estate & Promises to Make a Will

The executor or administrator of an estate plays an important role in carrying out the will of the deceased, and in many cases they may also play an important role in dealing with the issue of outstanding debts left by the decedent. While a creditor may feel relieved at an executor or administrator’s promise to take care of the debt on their own dime, extra precautions need to be taken to make sure that such a promise is enforceable.

Ohio Revised Code § 1335.05 states that, “No action shall be brought whereby * * * to charge an executor or administrator upon a special promise to answer damages out of his own estate * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.”

In other words, contracts that are made by an executor or administrator that promise to pay a debt of the estate using the executor or administrator’s own assets, must be in writing and signed by the executor or administrator in order to be enforced. This requirement is very similar to our discussion of personal guarantees for the debt of another, seen in Part 2 of this series on the Ohio statute of frauds.

Beyond promises to pay for the debt of the estate, executors must also be aware that oral promises to make a will are also a concern, and they too must be in writing to be enforceable.

Ohio Revised Code § 2107.04 states: “No agreement to make a will or to make a devise or bequest by will shall be enforceable unless it is in writing. Such agreement must be signed by the maker or by some other person at such maker’s express direction. If signed by a person other than such maker, the instrument must be subscribed by two or more competent witnesses who heard such maker acknowledge that it was signed at his direction.”

This means that any agreement to make a will, or leave something to another via will, must be in writing and it must be signed. If the maker of the will does not sign it, an individual who has been expressly directed to sign it by the maker of the will must sign it, and there has to be at least two competent witnesses that can sign and affirm that the person who signed the agreement was directed to do so by the maker of the will.

A recent Fulton County case illustrates the issues arising from an oral promise to make a will. Bonita LaPoint’s four stepchildren brought claims against Woodrow Templeton, executor of their stepmother’s estate, in response to promises made by Bonita following the death of her husband. Bonita had provided waivers to all the children. In return for signing the waiver, in which the children stated they would not dispute the will of Mr. LaPoint, Bonita promised to ensure that her own will would result in the family business assets being split between Bonita’s natural children, and all remaining assets being split equally among all of Bonita’s natural children and stepchildren. While almost all the children signed the waiver, the waivers subsequently disappeared and no other written contract was in place. Upon Bonita’s death, instead of an equal division of assets among all the children, all remaining business interests went to one natural child and the remaining assets were distributed equally between three charitable organizations. The court found Bonita’s promise to the children was a promise to create a new will, and consequently Ohio revised Code § 2107.04 applied. In the absence of a suitable written contract, Bonita’s promise to create a will resulting in equal distribution of assets among all the children was unenforceable.

As this case shows, an agreement to make a will must be in writing to be enforceable. Likewise, a promise by an executor or administrator to pay the debt of an estate must also be in writing to be enforceable. When an individual dies we may seek the security of knowing that outstanding debts will be taken care of and that promised wills are in existence and will be carried out. A qualified attorney can help provide you with this security by assisting you in placing these kinds of promises in writing, in line with Ohio’s statute of frauds requirements.

Crumpton Law LLC and its attorneys practice small business law in Columbus, Ohio, and throughout the surrounding counties and cities of Franklin County, Delaware County, Union County, Madison County, Pickaway County, Fairfield County, Licking County, Dublin, Powell, Lewis Center, Worthington, Westerville, New Albany, Gahanna, Bexley, Reynoldsburg, Canal Winchester, Grove City, Hilliard and Upper Arlington.

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