In re Estate of McFatter, 94 S.W.3d 729 (Tex. App.—San Antonio 2002, no pet.).
Husband and Wife executed a joint will in 1968 providing for the
entire estate of the first to die to pass to the survivor. Husband died
in 1998 and the 1968 will was admitted to probate. In 2001, Wife
executed a new will which revoked her 1968 will. After Wife died, both
wills were offered for probate by different individuals. The trial court
granted summary judgment holding that the 1968 will was contractual in
nature.
The appellate court reversed. The court examined the will under the
standards which are applicable to wills executed before September 1,
1979, the effective date of Probate Code § 59A (requiring the will
itself to state that a contract exists and its material terms).
The court explained that a will would be deemed contractual only if (1)
the gift to the survivor is not absolute and unconditional, even though
it may initially appear to be so and (2) the balance remaining from the
estate of the first to die and estate of the last to die is treated as a
single estate and jointly disposed of by both testators in the secondary
dispositive provisions of the will. In this case, the will provided that
the survivor would hold the entire estate “as his or her property
absolutely” and did not contain a secondary dispositive provision.
Accordingly, the court held that the 1968 will is not a contractual will
as a matter of law.
Moral: The contractual nature of pre-September 1, 1979 wills is
difficult to demonstrate.
In re Estate of McFatter, 94 S.W.3d 729 (Tex. App.—San Antonio 2002, no pet.).
Husband and Wife executed a joint, non-contractual, will. The
appellate court reversed the trial court’s finding that Wife’s act of
probating the will and accepting benefits thereunder estopped her from
changing the will. The court explained that the will did not clearly and
unequivocally demonstrate Husband’s intent to dispose of Wife’s property
Instead, Husband simply transferred to Wife all of the property he owned
upon death.
Moral: A joint, non-contractual, will does not, without more, place the
surviving spouse in an election situation.