Also known as: mutual wills · reciprocal will · reciprocal wills
Written by attorneys — see sources below.
A testamentary instrument executed by one of two or more persons who simultaneously execute reciprocal wills containing mirror-image provisions that dispose of their estates to each other. Execution of mutual wills creates no presumption that the testators entered a contract not to revoke.
Maria Morales and Malcolm McKinley executed mutual wills leaving their respective art collections to each other. At the same time they signed a handwritten note stating they would never revoke without mutual consent. Five years later Maria executed a new will naming a museum as sole beneficiary. After her death Malcolm sued the museum for breach of the succession contract evidenced by the signed note.
Maya Malik and Mason McCarthy retained the same attorney to prepare mutual wills leaving their estates to each other. After both died, their estates disputed ownership of certain assets. In the ensuing litigation one estate sought to introduce communications that had occurred during the joint drafting sessions. The court held that the attorney-client privilege did not apply between the estates because the clients had been makers of mutual wills.
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 binding succession contract must be proved by one of the three statutory methods: 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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A separate writing that evidences the contract and is signed by the party alleged to have breached it satisfies the requirement. The writing must clearly show an agreement concerning succession. Vague statements of intent are insufficient.
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No. Oral statements fall outside the three exclusive statutory methods. A contract concerning succession cannot be proved by oral assurances alone even when the testator repeatedly told staff that the arrangement was permanent.
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Yes. A signed writing that evidences a promise to make a specific devise satisfies the statutory requirement regardless of whether the parties also executed mutual wills. The later will that breaches the contract does not defeat the claim.
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…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),…