Also known as: mutual will · reciprocal wills
Written by attorneys — see sources 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.
In August 1970 Harvey Snide and his wife Rose Snide participated in a common execution ceremony intended to produce mutual wills. Each spouse signed the document prepared for the other after the wills were placed in the wrong envelopes. The attorney, attesting witnesses, Harvey, and Rose completed the ceremony without examining the front pages or attestation clauses of either instrument. The two documents were identical in every respect except for the names of the donors and beneficiaries. Harvey Snide died survived by his widow Rose and three children. Two adult children executed waivers and consented to probate of the instrument Harvey had signed. The minor child was represented by a guardian ad litem who objected to probate. Rose Snide, as proponent, offered for probate the instrument Harvey had actually signed. The Surrogate decreed that the instrument could be admitted to probate and reformed by substituting the name Harvey wherever Rose appeared and the name Rose wherever Harvey appeared. The Appellate Division reversed that determination on the law.
View caseNo. 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),…