Reciprocal Wills Enforceable After Death of One Spouse

JULY 26, 2010 VOLUME 17, NUMBER 23
Imagine a couple, each married for the second time. Perhaps each has children from a first marriage. Perhaps the couple has been married for years — even decades. They think of all the children as “their” children, even though they fully understand that the other spouse’s children are stepchildren.

One of the spouses — let us say the husband — dies. He leaves his interest in the family home, together with all the couple’s accumulated wealth, to his widow; his will specifies that on the second death all of the children share the estate equally. His children remain in contact with their stepmother for the next decade, though that contact lessens over time. When she dies, what happens to the home, the bank accounts and the remaining wealth?

This scenario plays out again and again. Most often, the deceased husband’s will is irrelevant. If the property all passed to the wife without restrictions, she is free to change her will, to transfer the property into trust, to spend it or even to give it away. But that is not always the case.

Ralph and Elaine Lawson married in 1971. They owned 12 acres of Iowa land as “joint tenants with right of survivorship.” They had three children between them: Ralph’s son and daughter Roger and Le Ann, and Elaine’s son Lonnie. Just to complicate things further, Ralph later adopted Lonnie.

In 1987 Ralph and Elaine signed identical wills. Each left everything to the other. On the second death, the wills provided that fifty percent of the combined estate would go to Lonnie, twenty percent each to Roger and Le Ann, and ten percent to the couple’s church. The wills contained an unusual provision: each included language that indicated the couple had agreed “that neither will change our will” without the other’s consent.

Ralph died first. The property passed to Elaine automatically because of the joint tenancy title, so Ralph’s will was not filed with the Iowa probate courts.

A few years later Elaine changed her estate plan. First she transferred the acreage to her son Lonnie, reserving a life estate for herself. Then she signed a new will, leaving the same proportions of her estate to Lonnie (50%), Roger (20%) and Le Ann (20%), but changing the church which would receive the remaining 10%. Shortly after that, Elaine died.

Roger and Le Ann sued to enforce the terms of their father’s and stepmother’s original wills. They alleged that the wills amounted to a contract, that Elaine’s transfer of the property to Lonnie violated that contract, and that the court should impose a trust upon the property to secure its return to the original beneficiaries. The trial judge reviewed the two wills and agreed with Roger and Le Ann.

The Iowa Court of Appeals upheld that ruling, ordering the imposition of a trust on the 12 acres. The language of Ralph’s and Elaine’s wills made it clear, according to the appellate judges, that their intent was to prevent the survivor from changing the estate plan by a new will or by transferring property during lifetime.

Lonnie argued, unsuccessfully, that the reciprocal wills should not prevent transfers of the acreage because it did not come into Elaine’s estate by virtue of Ralph’s will. The court dismissed that objection, noting that the language of the wills was broad enough to encompass any estate planning technique, whether it might be a will, a gift, or a living trust. The appellate judges also rejected Lonnie’s argument that his parents’ wills should not have been admitted to the court proceeding; the wills were not being admitted to probate, said the judges, but were being admitted to prove a contract. Consequently, the standards and requirements for admission were those governing contract documents rather than wills. Cunningham v. Lawson, July 14, 2010.

Would Arizona courts reach the same result? It is not completely clear, since the law of reciprocal wills (sometimes called mutual or contractual wills) is not well developed. What is clear in Arizona law is that reciprocal wills can be enforceable; what is less clear is whether they might prevent lifetime transfers of property by the surviving spouse.

One reason that the law is less than clear is that truly reciprocal wills are uncommon. Arizona’s probate code makes clear that the mere fact that wills are identical does not mean they embody a contract not to change the terms; in order to make the agreement binding it must be expressly stated in the wills or in a contractual document. Because that is uncommon, there is little law interpreting such terms.

What is more clear is that the question we hear so often is usually easy to answer. “Does my stepmother [or stepfather] have the right to leave the house she inherited from my dad [or mom] to her kids from her prior marriage?” Absent a clear contract not to change the will, or a trust provision prohibiting the transfer, the answer is likely to be: “I’m sorry, but yes.”

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5 Responses

  1. Lonnie Lawson

     /  December 4, 2010

    I still do not agree with the courts findings. You are only telling a brief part of the hearing. Jim Box, the attorney that wrote the wills, had a deposition (available to read) that said Elaine Lawson had the right to transfer the property. He said the wills did not prohibit her from doing so. I have his deposition so I know exactly what he said. Attorney Rick Lynch, transferrer of property and writer of a 2nd will, testified in court that the wills did not prohibit the transfer either. These mutual, joint, contractual wills, of which I knew nothing about untill 5 months after Elaines death, were adjudged to be contractual……making them a contract. A contract is a matter of law. Ralph Lawson give a hand written receipt to Lonnie, in Elaine’s prescense, for the house with not only Lonnie’s name on the receipt, but also Lonnie’s wife as a receiver of the receipt. First year contract law would show this is breach of contract and Ralph breached the contractual wills. Not one word of this was mentioned even by my defense attorney. You will find in the court transcript of the Iowa Appellate Courts that Judge Vatherswaren asked the plaintiffs council, Mike Brown, what his take was on the receipt. His answer was, “It means Ralph changed his mind and wanted to give everything to his son Lonnie, but he can’t do that.” Both wills stated clearly in them that “written consent” would allow the other to be void from the contract. The District Court, Appellate Court, and Supreme Court mention nothing of this receipt in their findings. NOTHING!! And IT WAS admitted to evidence as a defendants exhibit. They mention nothing about Box & Lynchs testimony either. The findings and decision the 11 judges and 3 courts had totally mentioned nothing about the receipt and why it meant nothing. Opposing council knew exactly what it meant and explained what it meant to 3 judges in his own words and they mentioned nothing about the receipt. The only thing they mention about Box & Lynch is from Judge Daniel P. Wilson and he says it is up to him to determine the findings. My entire defense was avoided from the beginning. I think it only fair if your going to write an opinion about all this that you know all the facts and not just what you read. I have all the facts in hand and can prove it. Also I am truly hoping that some attorney reads this and sees that 3 courts in Iowa lacked answering any questions about my defense. Their findings force me to buy a house that was given to me by Ralph & Elaine, according to the law, and now I am forced to buy it. The wills also clearly say that Lonnie had an option to purchase, but with all 3 courts in agreement this right is stripped from me also.
    In conclusion Lonnie would like you to know that he is NOT the bad guy in the picture here, but rather the victim of a unjust, unfair, deaf in both ears and can’t read judicial system.

  2. Arlene Rosner

     /  January 30, 2015

    I found this to be pertinent to my current situation…I wonder if there is a way for this to work through the AZ court? I want to ensure my children’s inheritances, the main one being my house and land. Thank you for publishing this.

  3. Arlene:

    If what you are saying is that you want to leave property so that it is available to your spouse but ultimately goes to your children, there are several choices available to you (at least in Arizona — other states might differ). The one described in this article — reciprocal wills — is one of the least popular among lawyers, and most of us seldom see reciprocal wills.

    You should talk with your lawyer about your property, your family situation, and your wishes. You might want to start the conversation without your spouse present, so that you get advice only about your situation and not colored by representation of your spouse.

    Good luck.

    Robert B. Fleming
    Fleming & Curti, PLC
    Tucson, Arizona

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