Contract as Addendum to Will

[bgp5740]

Hello,

I would have posted this under “Contract Law” but could only find a category for Consumer Contracts which this is not. Therefore I'm posting here.
We are in the middle of a court case involving a lengthy Complaint and multiple Defendants and Plaintiffs. The case comes down to whether or not a Contract 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.What is the name of your state (only U.S. law)?

 

[Stephen1]

You said that both parties understood it to be a contract. Let me go out on a limb, but I would say that if you are in court then there is no agreement as to how to treat this piece of paper. Sounds like you are asking us to second-guess the judge who has more info than we do.

 

[bgp5740]

Hello Stephen1. Thank you for replying.

We believe the judge was prejudiced against us when we challenged him on a 1st amendment issue involving posting the case on the Internet (we've since password-protected it). He said numerous times at a previous hearing that we had a good case with our “contract” and asked why we would “muddy the waters” with posting on the Internet and 1st amendment issues. At yesterday's hearing, he reversed himself and said the “contract” was part of the Will and could be changed by the Defendant. Yes, we're second-guessing the judge and he's hard to read. The entire case is located here: MA Civil Case No. BACV2011-00433, username: plaintiff, password: macase433. The Contract/Addendum is located here: http://plaintiff.jetiii.com/Documents/ExhibitA.pdf.

 

[Zigner]

My opinion is that this is clearly an amendment to the will. Furthermore, there are several questionable sections that would appear to be invalid (particularly the section claiming that it is a part of the will and can never be changed (paraphrasing))

 

[bgp5740]

Thank you for your reply Zigner.

I know I can't get into the mind of a judge, but since our entire case was based on the Addendum/Contract being a separate contract from the Will, why did the judge previously say we had a good case with the Contract? He had the entire case before him.

Also, to which sections are you referring when you say, "several questionable sections"? Thank you for your feedback.

 

[Zigner]

Thank you for your reply Zigner.

I know I can't get into the mind of a judge, but since our entire case was based on the Addendum/Contract being a separate contract from the Will, why did the judge previously say we had a good case with the Contract? He had the entire case before him.

No telling...

Also, to which sections are you referring when you say, "several questionable sections"? Thank you for your feedback.

I posted one in particular. And, if that section is ruled invalid, then your entire case is trashed.

 

[bgp5740]

Thank you Zigner for your time and feedback.

 

[bgp5740]

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. The Motions before the judge 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?
2. 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 MA Civil Case No. BACV2011-00433. 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

 

[tranquility]

What did you give up for the "contract"?

 

[bgp5740]

Thank you tranquility for your reply.

Jesse III loaned hundreds of thousands of dollars to his parents. When his father died, he didn't file against the estate for monies he loaned to them. From the Addedndum/Contract: “Further, JET does herein acknowledge that he fully understands that the monies he receives from the PROPERTIES will most likely not fully repay him for the services he provided, the monies he advanced and the interest to which he is entitled.”

The contract can be found here: http://plaintiff.jetiii.com/Documents/ExhibitA.pdf

 

[tranquility]

Again, what did you give up for the contract?

Not to reflect what already happened, but what did you give up for mom's signature?

 

[Mass_Shyster]

the Judge ruled against us and we would like to file an appeal. Any suggestions?

The judge makes findings of fact and issued rulings of law. Here, the judge found (as a fact) that "Sophie then executed an Addendum to the Will".

Based on this document being an addendum to the will, the judge found, as a matter of law, that the this contract to make a will cannot be litigated until the time of performance has come.

Appeals courts give great deference to findings of fact by the judge, as the appeals court only has a paper record of the proceedings. Generally the only way to have the decision flipped is on the ruling of law unless there is no way that the judge could have come to the finding of fact based on the evidence provided.

You can't simply file an appeal because you don't like the decision. The appeal must claim that some mistake was made. In this case the mistake must be that the document was not an addendum to the will and was an independent contract, or that "Massachusetts case law is [not] clear that an enforceable contract to make a will cannot be litigated for breach of contract until such time for performance has arrived".

 

[bgp5740]

Reply to tranquility:
A) My father passed away and I agreed not to file a lien against the estate prior to his will being probated.
B) We agreed to preserve the main asset of the estate, its real estate, which was in major disrepair

 

[bgp5740]

Thank you for your reply Stevef.

Our argument to the Judge was in fact that the document was not an addendum to the will but was an independent contract. He seemed to agree with us at one hearing then change his mind at the next hearing.

We are now looking for MA case law to support our argument.

 

[Mass_Shyster]

We are now looking for MA case law to support our argument.

All of the Mass SJC and appellate cases are available (and searchable) at Massachusetts Court Cases