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Dienst v. Dienst

    Citation

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    Bloomberg Law

    Brief Fact Summary. During divorce proceedings, a husband attempted to introduce into the proceedings a promise of his wife, to will all her property to him if she predeceased him.  The wife argues that this type of promise is within the Statute of Frauds ("SOF").


    Synopsis of Rule of Law. Agreement "made upon consideration of marriage" are within the Statute of Frauds.


    Facts. The Plaintiff wife filed a bill of complaint praying for divorce against her Defendant husband on the ground of extreme cruelty.  In a cross-bill, the Defendant alleges that the Plaintiff orally agreed to execute a will granting all of her property to him if he survived her.  The Defendant wanted that will to settle all property rights between the parties.  The Plaintiff alleged that the alleged contract, the will, was within the SOF.  The relevant statutory provision reads "Every agreement, promise or undertaking, made upon consideration of marriage, except the mutual promises to marry, shall be void unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, signed by the party to be charged therewith."  The Defendant does not dispute that the agreement at issue here, for his wife to bequeath all her property to him was made in the contemplation of marriage.  However, he says that the agreement was actually for him to "give up his home and employment and abandon prospective political preferment, come to Kalamazoo, marry, and reside with complainant and not return to Kansas."  If he would do so, she would not only support him, but also would make a will.


    Issue. Was the parties' agreement to enter into a will within the SOF?


    Held. Yes.  Since the Plaintiff's promise to the Defendant was in "consideration of marriage", the agreement was within the SOF.  As such, the agreement was void because it was not in writing.


    Discussion. This case offers another example of an agreement, which falls within the SOF and must be in writing.



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