Also known as: mutual wills · reciprocal will · reciprocal wills
Written by attorneys · grounded in primary & secondary sources — see 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.
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No. 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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…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.…