Contracts Relating to Wills

Question 1

What is a joint will?

Answer 1

Will of two or more persons executed on same piece of paper
* Admissible to probate on the death of each of the joint testators as if separate pieces of paper
* Revocable by testator in same manner as any other will

Question 2

What is a reciprocal will?

Answer 2

Two separate wills containing provisions that mirror one another
* Revocable by testator in same manner as any other will

Question 3

Is a joint or reciprocal will contractual?

Answer 3

Where executed out of an agreement between the creators as to the disposition of their property
* Irrevocable by survivor after death of other contractual party
* If survivor amends or revokes, may be breach of contract and beneficiaries can enforce K in equity via specific performance or imposition of a constructive trust

Question 4

How is a will established as contractual?

Answer 4

Through clear and convincing evidence of a contract: (1) in the language of the will, (2) from extrinsic evidence, or (3) by clear implication from surrounding circumstances
* The mere existence of joint or reciprocal wills with agreed-upon dispositions does not give rise to inference or presumption that will was executed pursuant to K

Question 5

What is the procedure if a will is found to be contractual?

Answer 5

The second, breaching will is probated, but the beneficiaries under the first, contractual will are entitled to specific performance
* A constructive trust is imposed for them