Suit Against Estate On Contract to Make Will Timely Pursuant to 1-Year Statute of Limitations

  In a case of first impression the court in Allen v. Stoddard was confronted with the circumstance where plaintiff’s suit — based upon an alleged contract to make a will against the executor of an estate — was filed 91 days after rejection by the estate of his creditor’s claim but within a year of the decedent’s death.

  Probate Code sections 9350 to 9354 govern claims against decedents’ estates and section 9353 unambiguously states that regardless of any other statute of limitations, any claimant against an estate has only 90 days after notice of rejection of the claim by the estate to file suit. If section 9353 governs plaintiff’s claim is time-barred.

  However, Code of Civil Procedure section 366.3 specifically gives persons who have claims against estates based on promises to make a distribution after death (such as contracts to make a will) a full year from the date of the decedent’s death to file suit. Was plaintiff’s suit, therefore, timely? The court held that it was.

  Insofar as section 9353 and section 366.3 provide for different times within which a claimant must file suit on a claim within section 366.3, the two statutes cannot be reconciled. The court applied the well-established rule that where statutes are in irreconcilable conflict, a specific and later enacted statute trumps a general and earlier one. The court found section 9353 to be a general statute because it applies on its face to all claims. Section 366.3 is a specific statute because it applies only to a narrow class of claims, i.e., those based upon a promise or agreement with the decedent to a distribution from an estate or trust or another instrument.

  The court declined to extend the holding beyond when suit must be filed, essentially limited it to its facts. It expressly noted the case involves a claimant who filed a timely claim with the estate pursuant to Probate Code sections 9002 and 9353, but who did not file a timely suit under section 9353. However, the suit was timely under section 366.3 and because section 366.3 trumps section 9353 on the topic of when suit must be filed, plaintiff’s suit was timely.

  Interestingly, the court declined to follow the Rutter Group Probate Treatise which opines that claims within the scope of section 366.3 are not “claims” within section 9000 claims “subject to the claim-filing requirements” of the Probate Code.

  The court expressly held it did not decide issues not presented. For example, the court did not decide the case where a suit might be timely under section 366.3, but where no claim had been filed, nor the problem of an estate that somehow tries to run out the clock on section 366.3, nor other unexplored circumstances where section 9351 simply cannot be reconciled with section 366.3.


Michael Daymude consults with clients and accepts cases involving wills, trusts, and estates, including claims against estates and contracts to make wills. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael at 818.971.9409.

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