Page 42 - Senior Link Magazine Summer 2023 - Online Magazine

SENIOR RESOURCES

JOINT WILLS and

CONTRACTUAL WILLS

by Lee Franks

ecently, I had the opportunity a couple at the same time and dealing a practical matter, the original joint
to help a client probate a joint with overlapping estates. Will is filed with the county clerk as
RWill, and it brought to my part of the probate process, requiring
mind the questions and issues arising Joint Wills, created before September the applicant probating the Will of
when two or more people or parties 1, 1979, often created serious the survivor to keep or maintain a
try to make their testamentary plans difficulties for the second one of certified copy of the original Will.
in some coordinated fashion. These them to die because Texas courts As to contractual Wills, if a couple
situations commonly arise because commonly treated joint Wills, made wishes to execute Wills binding each
a couple has children from prior before that date, as contractual, other to a particular testamentary
relationships, and they intend to bind preventing the survivor from making plan, they should seek the assistance
themselves to some compromise plan any other testamentary plans after of a competent attorney to ensure
to distribute their estates upon the the death of the first or altering that their Wills actually accomplish
death of the first and then the second the composition of the resulting the plan that they have in mind and
of them. However, some couples combined estate during the life of that the Wills conform to §254.004,
execute a joint Will because it seems the survivor. Even mutual Wills, not making them indeed contractual.
more efficient having one rather intended to be binding or reciprocal,
than two, or because the mutual could be treated as contractual under
undertaking has romantic overtones some circumstances.
or signals marital unity.
Effective September 1,
First off, it helps the discussion to 1979, however, the Texas
define some terms up front; other Estates Code §254.004
definitions will follow at appropriate required express language
points. Throughout this comment, to make joint Wills or
the capitalized “Will” refers to a mutual or reciprocal Wills
last Will and testament to avoid contractual. Specifically,
confusion with “will,” the verb. An a contract to make a Will
“estate” refers to everything a person or other testamentary gift
owns, whether separately, jointly irrevocable requires a
with another, or in community with binding and enforceable
a spouse. A joint Will contains the written agreement or a Will
related testamentary plans of two or that states the existence of
more individuals in a single writing the contract and includes
or instrument, and mutual Wills the material provisions of
contain the related testamentary that contract.
plans of two or more individuals
in multiple instruments. The term As a takeaway from this
“mutual Will” seems to apply comment, couples should
generally to a joint Will, contractual avoid using joint Wills,
or reciprocal Wills, as well as mirror partly due to their complex
Wills or any other Wills executed by history in the courts, but as

42 Lubbock Senior Link