Chapter C.Joint and Mutual Wills

• Jurisdiction: Washington

C JOINT AND MUTUAL WILLS

C.1. In General

As indicated earlier, most of the legal aspects of contracts to make wills in general apply equally to mutual wills executed pursuant to a contract and have already been discussed. The consideration for mutual wills is usually the mutual promises to make reciprocal wills rather than services rendered, but otherwise the problems of the Statute of Frauds, proof of a contract, etc. are much the same.

Except with respect to pre- and postnuptial agreements, which might require that the parties execute wills with specific provisions, true "mutual" wills are actually rare, because that term implies execution pursuant to a contract between the two testators as to the ultimate disposition of their property after the death of both.¹¹⁸ There is an agreement not only to execute wills disposing of their property in a certain way (typically to the surviving spouse, then on his or her death to agreed-upon beneficiaries), but not to revoke those wills before the agreement has been carried out. Reciprocal wills, on the other hand, which merely contain common or reciprocal provisions but are not necessarily executed pursuant to any agreement as to their making or revocation, are quite common, especially between husbands and wives.¹¹⁹ The problem, of course, is to distinguish one from the other, in light of the fact that even when a contract exists,

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it rarely is incorporated into (or even mentioned in) the wills, so that reciprocal and mutual wills usually are identical in appearance.

"Joint" wills, the other half of the common reference to "joint and mutual" wills, are simply reciprocal wills incorporated into one document that acts as the last will of both testators. Joint wills are perhaps more likely to be made pursuant to a contract than are separate reciprocal wills, but certainly they need not be so motivated.¹²⁰

C.2. Evidence of Mutual Wills

The execution of simultaneous and/or reciprocal wills is not evidence of any contract or agreement that they should be irrevocable, absent any reference to such an agreement in the wills.¹²¹ Although the content of the wills can strongly indicate existence of an agreement not to revoke,¹²² there is no substitute for a recitation of the agreement in the will¹²³ or another writing.¹²⁴ Lacking such a writing, the court will consider such factors as an inequitable division of property as disproving that there was a contract.¹²⁵

If the will is to refer to the agreement not to revoke, it should do so clearly and should not leave anything open to a different interpretation.¹²⁶

When the Statute of Frauds is involved, the mere making of the mutual wills is not sufficient part performance to remove it from the statute...