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Seniors Choice, January 2006
The law allows you to revoke your will as long as you have the mental capacity to do so. What if you make an agreement that you will not revoke your will? Is the agreement enforceable? What if you change your will anyway?
Let me give an example of how this question might arise. Let's take a couple in a second marriage. Each of the wife and the husband has children from a previous marriage. They make wills leaving all of their wealth to each other, but each also provides that if he or she is the last to die, one half of the estate will go to his or her children, and one half to the spouse's children.
In this example, let's assume that the husband dies first, and inherits all of his wife's wealth. He then changes his will, leaving everything to his children, and nothing to his wife's children. Can the husband do this?
Yes. Although it may not be fair to his wife or her children, he is entitled to change his will.
However, what if when the couple made their wills they entered into a mutual wills agreement that they would not revoke their wills?
Our courts have held that where two people expressly agree that they will not revoke their wills, and one of them dies without revoking his or her will, the agreement binds the surviving person.
In our example, if the couple made a mutual wills agreement that neither one would revoke his or her will, then the wife's children could sue the husband's estate and ask the court to require that one half of the estate be paid to them. Technically, the court does not prevent the husband from revoking his will, he has already done that, but imposes a constructive trust over one half of the husband's estate for the wife's children.
Before finding a mutual wills agreement, the courts require clear evidence that each party agreed not to revoke his or her will, usually an express written agreement or statement in the wills. It is not enough to show that each was honor bound to keep the provisions of his or her will. In making a mutual will agreement each party is agreeing that he or she will abide by the agreement even if after the other's death, he or she remarries, or has children.
There are several potential problems enforcing mutual will agreements. Supposing in our example, the husband does not destroy his will or make a new one, but gets married. A marriage itself revokes a will, unless it is made in contemplation of the marriage. Supposing the husband does not revoke the will at all, but transfers his property into a joint tenancy with right of survivorship with his children, leaving little or nothing to pass under his will? What if he gives all of his wealth away before he dies?
It is possible that a court would enforce the agreement if husband has transferred assets into a joint tenancy or given assets away. The court might impose a constructive trust on those assets. However, the outcome would be uncertain.
By Stanley Rule of the law firm Tinker, Churchill, Rule. You can read his weblog "Rule of Law" at http://rulelaw.blogspot.com |
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