Also known as: reciprocal wills · mutual will · mutual wills
Written by attorneys · grounded in primary & secondary sources — see 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.
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No. 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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…823, 835 (6th Cir. 1941). The exception applies to partners, Billias v. Panageotou, 193 Wash. 523, 76 P.2d 987 (1938); makers of mutual wills, Wilson v. Gordon, 73 S.C. 155, 53 S.E. 79 (1905), and joint trustors, Boyle v. Kempkin, 243 Wis. 86, 93, 9 N. W.2d 589 (1943); insured and insurer in an automobile death action, Hoffman v.…