Also known as: mutual will · reciprocal wills
Written by attorneys · grounded in primary & secondary sources — see below
Separate wills executed by two persons, usually spouses, that contain reciprocal provisions disposing of each testator's estate in a parallel manner. The execution of mutual wills alone creates no presumption that the parties have agreed not to revoke their wills.
Mina Mehta and Mariam Mansour execute mutual wills leaving their respective art collections to each other. At the same time they sign a handwritten note stating they will never revoke the wills without mutual consent. Mina later executes a new will naming a museum as sole beneficiary. After Mina's death Mariam sues the museum. The signed note satisfies the statutory writing requirement and supports Mariam's contract claim.
Mustafa Mahmoud and Miguel Mendoza intend to execute mutual wills at a joint ceremony. Each signs the document prepared for the other. The wills are otherwise identical except for the names of the donors and beneficiaries. The court treats the signature error as a scrivener's mistake, reforms the instruments to match the parties' mutual intent, and admits both wills to probate.
Select any source to read its text and confirm it supports the definition.
No. The execution of mutual wills creates no presumption of a contract not to revoke. A contract to make or not revoke a will must be proved by one of three statutory methods: material provisions stated in a will, an express reference in a will plus extrinsic evidence, or a separate writing signed by the party alleged to have breached the contract.
A separate writing signed by the breaching party that evidences the contract satisfies the statute. Oral statements to third parties or the mutual character of the wills alone do not meet the formal requirements.
Yes. When spouses intend to execute mutual wills at a common ceremony but each signs the instrument prepared for the other, courts may treat the error as a scrivener's mistake and reform the wills to conform to the obvious mutual intent.
…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),…