Also known as: reciprocal wills · mutual will · mutual wills
Written by attorneys — see sources below.
A will executed by two persons, usually spouses, containing reciprocal provisions in which each leaves property to the other. Execution of such wills creates no presumption of a contract not to revoke.
Riley Rivera and Regina Robinson executed wills leaving their estates to each other. They also signed a short note stating they would not revoke without consent. Years later Riley executed a new will favoring a charity. After Riley died the note satisfied the writing requirement for a succession contract, so Regina could enforce the agreement against the estate.
Ravi Reddy and Rosalind Reed retained a law firm to prepare reciprocal wills. The firm also represented a third party in an unrelated matter. When litigation later arose the court examined whether the joint estate-planning representation waived privilege for communications about the 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 statute provides that execution of joint or mutual wills creates no presumption of a contract not to revoke. A contract must be proved by one of the three specified methods.
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The agreement may be established only by provisions in a will stating the material terms, an express reference in a will plus extrinsic evidence, or a separate writing signed by the party alleged to have breached.
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If a valid contract not to revoke is proved, the aggrieved party may seek specific performance or damages against the estate even though the later will controls probate.
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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),…