Joint and Mutual Wills

DO YOU KNOW ABOUT JOINT AND MUTUAL WILLS?

A JOINT AND MUTUAL WILL is a contract between two spouses to dispose of their property in a particular way. Generally spouses verbally agree to make reciprocal wills leaving their property to each other and upon the death of the survivor everything to their children. This works fine in most cases because the children are born of the marriage and loved by both parents. But consider the case where two people marry late in life and both have children by a prior marriage. Suppose both have separately accumulated wealth and each want their children to share in their estate. If they merely make reciprocal wills, the surviving spouse could always change his or her will later and cut out the children of the deceased. This happens quite frequently where the surviving spouse does not get along with his or her stepchildren. A joint and mutual will prevents this from happening. Rather that each spouse execute a separate reciprocal will, both spouses execute one will that contains a provision as follows:

"We acknowledge that this is a joint and mutual will made at the same time and each of us have executed this Will with the understanding and agreement that the survivor will not change the manner in which the residuary estate is to be distributed and that neither of us as survivor will do anything to defeat the distribution schedule set forth herein, such as disposing of assets prior to death by way of trust bank accounts, trust agreements, or in any other manner."

If the first spouse dies and the survivor probates the joint and mutual will, the survivor is contractually bound to leave his or her estate in accordance with the distribution scheme in the will. If all children named in the will are to receive equal shares, the surviving spouse is contractually obligated to dispose of the estate equally to all children, including the step-children.

Notes of Decisions:

(Principles of joint and mutual wills are expressed in the following court opinions. This list is not meant to be exhaustive but merely illustrative of the interpretation and deference given to them by the courts. Joint and mutual wills are valid in all states except Louisiana)

	Arkansas Supreme Court "Arkansas recognizes reciprocal wills, whether joint or mutual, as a legitimate estate planning device to effect the intent of a married couple to dispose of collective property, generally, the surviving spouse is required to dispose of the collective property according to the joint will or mutual will." Gregory v. Estate of H.T. Gregory, 866 S.W.2d 379 (1993)
	California Supreme Court "Where two parties agree to make mutual wills, each promising to dispose of his property to the other or, if the other be dead, to certain third person, and one of the parties performs by leaving his property to the other, the intended devisees and legatees are entitled to enforce their rights as beneficiaries under the agreement." Brown v. Superior Court, 34 Cal.2d 559 (1947)
	Colorado Supreme Court "Where mutual or reciprocal wills have been made pursuant to an agreement which has been executed by one of the testators dying without having made any different testamentary disposition of his property and the other has accepted the benefits accruing to him under the will of the deceased, the agreement becomes obligatory upon the survivor and may be enforced in equity against his estate." Brown v. Johanson, 194 Pac. 943
	Florida Supreme Court "A joint will must be probated after the death of the survivor in order to pass title to property." Hall v. Roberts, 1 So2d 579 (1941)
	Illinois Supreme Court "A joint will may be revocable during the joint lives of the makes upon giving notice by one testator to the other, but such will becomes irrevocable after the death of one of the makers if the survivor accepts any of the benefits made for him by such will." Curry v. Cotton, 191 N.E. 307 (1934)
	Kansas Supreme Court "The interests of the beneficiaries named in a joint, mutual, and contractual will vest upon the will's being admitted to probate and not upon the death of the first testator." In Re Estate of Burcham, 248 Kan. 897 (1991)
	Michigan Supreme Court "Upon the death of one party to a contract to make mutual will, the agreement underlying the will becomes irrevocable and right of action to enforce it vested in the beneficiaries." Getchell v. Tinker, 291 Mich. 267 (1939)
	New York Court of Appeals "Where two people sign joint or mutual wills and one of them dies, the survivor is bound to the terms of the will and may not make a different testamentary disposition or inter vivos gift that would defeat the purpose of the joint will agreement." Glass v. Battista, 43 N.Y.2d 620 (1978)
	Texas Supreme Court "If the same document contains both the will and the contract, it is the contractual portion of the will and not the will itself which is irrevocable." Kirk v. Beard, 345 S.W.2d 267, 272 (1961)


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