Will Contracts

Question 1

What are Reciprocal Provisions?

Answer 1

1. Joint Wills

A joint will is a will signed by two or more persons that is intended to serve as the will of each. A joint will that is not reciprocal is merely the individual will of each of the persons signing the same document (and is treated as if there were several separate wills). A will that is both joint and reciprocal is executed by two or more persons, with reciprocal provisions, and shows on its face that the devises were made in consideration of the other.

2. Reciprocal Wills

Reciprocal wills are wills with identical or reciprocal provisions. Because reciprocal wills are separate, there is no contract between the parties to dispose of the property in a particular way, which means that either party can modify his will without knowledge of the other.

3. Contract Not to Revoke

In most jurisdictions, and under the UPC, the mutual execution of a joint or mutual will does not create a presumption of a contract not to revoke the will. Unif. Probate Code § 2-514. However, if a contract not to revoke is proved, and the second party attempts to make an inter vivos transfer not in accordance with the contract, or attempts to revoke her will after accepting the benefits under the first party’s will, then a constructive trust may be imposed for the benefit of the original beneficiaries. In a joint will contract, on the death of one party, the transaction is said to become an irrevocable contract as to the survivor.

Question 2

What is the rule for choice of law and wills?

Answer 2

At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.

Under the UPC, validity is determined under the law of the place where (i) the will was executed, or (ii) the testator is domiciled, has a place of abode, or is a national at the time of death. At the time of his death, Testator was domiciled in State B, so the law of State B will determine the validity of Testator’s will.

Question 3

What is the rule for conditions on a will?

Answer 3

The validity of a will can be conditioned on a particular event or circumstance. However, whenever possible, the court will construe excess language as a mere explanation or instruction, rather than a barrier to admitting the will to probate as a valid instrument.

The court will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will.

The court considers factors such as where the will was stored after the purported “condition” lapsed, whether setting the will aside would result in intestacy, and whether effectuating the will would result in an inequitable distribution.