Oral contracts: don’t prove me wrong, they are not worth the paper they are written on**

A Wikipedia search confirms what most learn at some stage during schooling; that is a contract is an agreement that meets certain criteria to make it enforceable at law.

In summary, the 4 key aspects of a valid contract are:

1. offer and acceptance;
2. all key terms agreed;
3. the intention of the parties to be bound; and
4. consideration exchanged.

Whether a contract exists when parties communicate in writing is sometimes difficult.

If the communication to form the (alleged) contract is verbal, the issues tend to become even more blurred. Often trying to prove the existence and terms of an oral contract become a game of ''he said; she said'' - itself a sure fire approach to generating legal fees.

It is perhaps for these reasons that, at least in relation to contracts involving land, each state has rules requiring that the terms of the agreement be documented in writing, for example:

Contracts for Sale of Land to be in Writing

No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised.

As usual, please contact me if you would like access to any of the content mentioned in this post.

** For the trainspotters, the title of today's post is riffed from the Jebediah song 'Nothing lasts forever’.

View here:

Challenging a Will due to Existence of Mutual Wills

A recent post listed the five main ways in which a will can be challenged – see 'Ways to contest a will'

One of the aspects listed was that wills are always subject to any contractual arrangements that a will maker may have entered into before their death.

One particular approach that is used from time to time is the concept of creating 'mutual wills'.

Essentially, a mutual will is a contract whereby two people agree to make their wills in a certain way and to then not change the document without the express consent of the other party to the agreement.

Traditionally, mutual wills are made between spouses, often where one or both of the spouses are in their second or subsequent life relationship. Alternatively, mutual wills can be implemented where there are particular assets in the estate that both spouses want to ensure are dealt with in a particular way, regardless of when they may each die.

The creation of a mutual will, if crafted correctly, can allow a party who would otherwise have received a benefit, but for a person entering into a new will in breach of the mutual will, to sue on the basis of a breach of contract.

While in theory, litigation for the breach of contract should be easier to succeed in, there have been a number of cases that have seen attempted mutual will arrangements fail.

Furthermore, the significant inflexibility created by mutual wills mean that most specialist advisers caution against their use.