Will Contracts and Joint Wills

Question 1

Is a contract to make, not make, or not revoke a will valid?

Answer 1

Yes – these are governed by contract law and must have consideration to be enforceable. Some states require they be in writing or specifically mentioned in the will.

Question 2

What is the remedy for breach of a will contract?

Answer 2

There is generally no remedy during the testator’s lifetime since they may comply up until death. If the testator repudiates after substantial performance by the promisee, the promisee may seek damages, quantum meruit or equitable relief. If the testator dies in breach, the usual remedy is a constructive trust for the benefit of the promisee

Question 3

What is a joint will?

Answer 3

A single instrument executed by two or more testators and intended to be the will of each.

Question 4

What is a mutual will?

Answer 4

Separate wills executed by two or more testators that contain substantially similar provisions

Question 5

Are joint and mutual wills revocable?

Answer 5

Yes, just like any other will

Question 6

Does the execution of joint or mutual wills raise the presumption of a contract?

Answer 6

No, there is no automatic presumption that they were executed based on a promise by each party to not revoke. Courts usually do find that the execution of joint but not reciprocal wills is evidence of a contract.

Question 7

What is the effect of a contract not to revoke wills where both provide for the disposition of a particular item of property?

Answer 7

If one party dies in reliance on the contract and the successor attempts to dispose of the property in breach of the agreement, a constructive trust will be created in favor of the intended beneficiary.

If one party dies in reliance on the contract and the successor revokes the will and makes a new will and dies, that new will will still be probated but there will be a constructive trust in favor of the beneficary.

If one party dies in reliance on the contract and the successor revokes the will but does nothing more, there is no relief available because the successor party is not in breach until death

If either revokes the will during both of their lifetimes, there is no relief available.