USING JOINT WILLS

Lawyers cringe when clients come to them seeking to save money and use a joint Will. "Why do we need two Wills?" "We know what we want and my mother and father had a joint Will, so why not?"

Joint Wills are more than Wills. They frequently are contracts or intended to be contracts. If a couple wishes to contract to make Wills with specific provisions they should do so by contract-not by Will. Things get confusing when the couple mixes common law concepts of Wills with common law concepts of contracts. The two serve very different purposes.

In one case a loving couple executed a joint Will. After the wife died, the husband sought to write a new Will and did so. The new Will eliminated a bequest to one of his children. The issue before the Surrogate was whether the Joint Will was intended to be a contract.

EPTL § 13-2.1(b) indicates, among other things, that a contract not to revoke a Will "... can be established only by an express statement in the will that the instrument is a joint will and that the provisions thereof are intended to constitute a contract between the parties." The Kings County Surrogate, and then the Appellate Division, indicated that the statutory test was not met and thus the husband was able to execute a new will. See In re Lubins, 673 NYS 2d 204 (2d Dep’t 1998).

Note: The Appellate Division essentially said that the right to change a Will is an important right that people possess and before we take away that right we must do only when the person has clearly given up the right. What was more interesting is that combatants were the children of the husband. It was a fight between the daughter and her brother who wanted to enforce the joint will but was unable to do so.