Combination Wills

1. Joint Wills – what they are not

1. Joint Wills Single document containing wills of two or more persons.

2. Reciprocal Wills Separate wills with parallel dispositive plans. “Sweetheart wills” “I leave all to wife. If wife is dead, I leave all to children.” “I leave all to husband. If husband is dead, I leave all to children.”

3. Contractual Wills Will executed (or not revoked) pursuant to a valid contract. EC § 254.004

3. Contractual Wills Establishing if will written before 9/1/79: Extrinsic evidence allowed. Caused considerable litigation.

3. Contractual Wills Establishing if will written on or after 9/1/79: 1. Express provision in will stating: A contract exists, and The material terms of that contract. or

3. Contractual Wills Establishing if will written on or after 9/1/79: 2. Provisions of a written agreement that is binding or enforceable. e.g., a marital agreement Estate of Faccibene

3. Contractual Wills Remedy for breach Constructive trust imposed on person who received property in favor of person who should have received property.

3. Contractual Wills To what property does contract attach Murphy v. Slaton – p. 294 If contract silent, only to property owned at time first person dies.

3. Contractual Wills Revocability of Contract While both alive – generally revocable upon notice unless contract provides otherwise. After one dies – generally irrevocable. Note – will remains revocable even though revocation breaches contract.

3. Contractual Wills Advice Avoid in most cases. But, may be useful in marital agreement planning. Other techniques (e.g., trust) work better.