Promise Not To Change Will Is Enforceable–Trust Also Fails

JULY 6, 1998 VOLUME 6, NUMBER 1

Arch and Emily Tucker were a married couple living in Colorado in 1962. That year, they both signed new wills, though Emily’s will could not be found decades later when problems arose. Arch’s will, though, included language reflecting an agreement between the two of them not change their wills. After noting that Emily’s will was similar, Arch’s will provided:

“…the contents and provisions of the said two Last Wills and Testaments shall not be changed and altered by one spouse without the full written knowledge and approval of the other spouse.”

Arch died in 1982, and Emily had his will admitted to probate. Other than a $2,500 bequest to his daughter from a prior marriage, his will left everything to Emily. At the time of his death, however, all of his property was held in joint tenancy with Emily, and so she received everything despite what the will provided.

In the years after Arch’s death, Emily apparently decided that she did not want her estate to go to the family members named in Arch’s (and her) 1962 will. Just two years after Arch’s death, Emily signed a living trust and transferred most of her assets to the trust’s name.

Emily’s new trust provided that upon her death everything would be distributed to a friend, Charles Glenn, and his wife Jean. In 1989 she also signed a new will, leaving her entire estate to the Glenns and naming Charles Glenn as her Personal Representative.

Emily Tucker died in 1994. Her estate (including both probate assets and the holdings in the living trust) was worth about $2.6 million. Charles Glenn submitted her will to probate, and indicated that he intended to distribute the trust assets according to its terms.

Arch and Emily Tucker’s family objected. They filed a court action alleging that Emily was bound by her agreement with Arch, and that she did not have the authority to either make a new will or to transfer her assets into her living trust. They sought to force Charles Glenn to return the entire estate to the family members.

Although Emily Glenn’s 1962 will was apparently lost, a Colorado jury found that it had been executed, and that it must have contained provisions essentially identical to Arch’s will. The jury agreed with family members that Emily could not negate her agreement with Arch (to leave her entire estate to family members) by simply transferring assets into a living trust. The Glenns appealed the ruling ordering them to return all Emily’s assets.

The Colorado Court of Appeals agreed with the jury (and the family). Colorado law (which is very much like Arizona law in this regard) permits two people to agree not to change their wills without one another’s consent, and Emily and Arch had such an agreement. To allow Emily to sidestep that agreement by transferring her assets to a living trust, the Court ruled, would be to defeat the purpose of the agreement.

The Court did note that Emily would have had the power to make “reasonable” gifts during her lifetime. She would also have had the right to use the funds for her own living expenses. But, the Court of Appeals ruled, she did not have the authority to “transfer the bulk of the estate in a way contrary to the terms of the agreement embodied in the mutual will.” Murphy v. Glenn, March 5, 1998.

Colorado, like most states, permits two people to agree that they will make a will, or that they will not make a will, or that they will not change an existing will. As in most states, Colorado requires that the agreement be written, and it must meet the requirements of a will itself. Those requirements may call for two (or more) witnesses and specific language to make the agreement effective. Once the rules are met, however, neither party is free to change the outcome after the first party dies.

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