Impermissible delegation of performance of personal services waives right to sue for breach of a contract to make a will.

In 1987, Nettie Browder Martin’s elderly neighbor asked Martin and her husband to care for her for the duration of her life. In exchange, the neighbor made a will leaving her residence to Martin. Martin fulfilled her obligation to care for the decedent until 2004 when, after her husband’s death, Martin moved away from the neighbor and ceased to serve as her primary caretaker. In her place, Martin’s son and daughter-in-law provided full time care to the neighbor until the neighbor died in late 2009. Before her death in early 2009, the decedent executed a new will leaving the residence to her granddaughter instead of to Martin.

After the neighbor’s death, Martin filed suit in the Norfolk Circuit Court seeking damages for breach of a parol contract to make a will. Martin argued that since her son and daughter-in-law continued to care for the neighbor in Martin’s absence, Martin was still entitled to receive the residence under the contract to make a will.

The court concluded that Martin stopped performing the required services under the contract, and impermissibly delegated her responsibilities to her son and daughter-in-law. Noting that contracts for personal services are not assignable in Virginia until the services have been performed, the court held that Martin could not recover on the contract after delegating the responsibilities to others. Therefore, the neighbor did not breach the contract by executing a new will. The fact that other parties continued to provide care for the neighbor after Martin moved away did not entitle Martin to damages with respect to the contract.