Also known as: mutual testament · mutual wills
Written by attorneys — see sources below.
Wills executed by two or more persons in which each devises property to the other or others. Execution of mutual wills creates no presumption of a contract not to revoke.
Madison Meyers and Miles Montgomery execute mutual wills leaving their art collections to each other. They also sign a handwritten note stating they will never revoke without mutual consent. Five years later Madison executes a new will naming a museum as sole beneficiary. After Madison's death Miles sues the museum for breach of contract.
Michael Miller and Miranda Morales execute mutual wills leaving their restaurant business to each other. Michael repeatedly tells staff the arrangement is permanent and contractual. Years later Michael executes a new will leaving the restaurant to his siblings. After Michael's death Miranda claims the business under an alleged contract.
Stockholders of First American Life Insurance Company of Alabama brought, in the Northern District of Alabama, a class action against the company and its directors, officers, and controlling persons. They alleged violations of the Securities Act of 1933, the Securities Exchange Act of 1934, SEC Rule 10(b)(5), the Investment Company Act of 1940, the Alabama Securities Act and common law fraud, seeking to recover the purchase price which they and others similarly situated paid for their stock in FAL. They also asserted a derivative action claiming that FAL was itself damaged by alleged fraud in the purchase and sale of securities. FAL filed a cross-claim against all other defendants, asserting in its own behalf the rights the plaintiff shareholders had claimed in the derivative aspect of their complaint. R. Richard Schweitzer served as attorney for the corporation in connection with the issuance of the FAL stock here involved. After the transactions sued upon were complete he became its president. On deposition Schweitzer was asked numerous questions concerning advice given by him to the corporation about various aspects of the issuance and sale of the stock and related matters. Other questions went into the content of discussions at meetings attended by him and company officials and information furnished to him by the corporation. All questions related to times at which Schweitzer acted solely as attorney, before he became an officer of the company and before the filing of suit. The plaintiffs had served a subpoena duces tecum on Schweitzer to bring various documents to the taking of his deposition. Both he and the corporation claimed the privilege with respect to some of the documents. The District Court treated the subpoena as though it were a motion to produce under Rule 34. The District Judge held that the privilege is not available to the corporation as against these plaintiff stockholders. Contemporaneously the District Judge ordered the case transferred to the Southern District of Alabama under 28 U.S.C. § 1404(a). With respect to both orders he entered appropriate findings pursuant to 28 U.S.C. § 1292(b), the interlocutory appeal statute. This court granted applications to allow both interlocutory appeals — the plaintiffs from the transfer order, docketed as No. 26168, and the defendants from the order denying the claim of privilege, docketed as No. 26266 — but provided that ultimate disposition of the appropriateness of interlocutory appeal would be taken with the case on the merits. Also the plaintiffs filed with this court a petition for a writ of mandamus directing the District Judge to retain jurisdiction of the case in the Northern District. The court has concluded that the consolidation of the two interlocutory appeals should be vacated. In this opinion we decide No. 26266, the interlocutory appeal of FAL on the privilege issue.
View caseNo. The execution of mutual wills creates no presumption of a contract not to revoke. A separate writing or other statutory proof is required to establish any binding agreement.
Supporting sources
A contract may be proved only by material provisions in a will, an express reference in a will plus extrinsic evidence, or a separate writing evidencing the contract and signed by the party alleged to have breached it.
Supporting sources
No. Oral assurances fall outside the three statutory methods. Only a qualifying writing signed by the breaching party or the other enumerated forms of proof suffice.
Supporting sources
A later will remains valid for probate purposes but may expose the estate to contract liability if a qualifying succession contract was proved under the statute.
Supporting sources
…not directly analogous with the present case, courts in other jurisdictions have also declined to reform or give effect to mutual wills that were mistakenly executed as a result of one testator erroneously signing the will prepared for the other. For example, in In re Estate of Pavlinko , 394 Pa. 564, 148 A.2d 528 (1959),…