Reed: What makes a will contractual?

Sandra W. Reed
Special to the Reporter

Husband Harold and wife Mildred executed a joint will that gave the survivor of the first to die a right to all their property during the survivor’s lifetime with the remaining estate when the second of them died to go to their three children Harold Jr., Roland and Rocky.

When Harold died, Mildred probated the will. Twenty-seven years later, she made another will, revoking the joint will and leaving all her property to Rocky. Mildred’s later will would be a breach of the joint will if the joint is a contractual will.

Sandra Reed

Needless to say, Harold Jr. and Roland were not happy with the second will and contested it as violating the terms of the joint will. Rocky claimed the joint will was not a contractual will and, therefore, his mother was entitled to change her will as she pleased.

Requirements of contractual wills

The Texas Estates Code provides that any contract to make a will or devise or to not revoke a will or devise entered into after Sept. 1, 1979, can only be established by: (1) a written agreement that is binding and enforceable; or, (2) a will which states the contract exists and contains the material provisions of the contract.

Was Harold and Mildred’s joint will contractual?

A Texas appellate court found Harold and Mildred’s will was indeed contractual. The court determined that, reading the will as a whole, it was intended that any estate left over after the second of the spouses to die was to go to their children as a class. Since Mildred’s later will left the remaining property to only the one child, Rocky, that later will breached the agreement in the earlier contractual will.

A cautionary tale

A joint will is a will of two or more persons in a single document. However, not all joint wills are contractual. To be contractual, the joint will must be pursuant to an agreement to dispose of the testator’s property in a particular manner made in consideration of each other.

Then the estates are treated as a single estate and are jointly disposed of by both testators as set out in clear provisions in the will. Making certain a will intended to be contractual actually meets the criteria required is a tricky business. Individuals wishing to make a contractual will should seek legal counsel skilled in drafting such a will.

Sandra W. Reed practices Elder Law in Somervell County, which includes handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning.  She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at