Also known as: mutual testament · mutual wills
Written by attorneys · grounded in primary & secondary sources — see 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.
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No. 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.
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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.
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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.
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…823, 835 (6th Cir. 1941). The exception applies to partners, Billias v. Panageotou, 193 Wash. 523, 76 P.2d 987 (1938); makers of mutual wills, Wilson v. Gordon, 73 S.C. 155, 53 S.E. 79 (1905), and joint trustors, Boyle v. Kempkin, 243 Wis. 86, 93, 9 N. W.2d 589 (1943); insured and insurer in an automobile death action, Hoffman v.…