Joint and Mutual Will Cases: Tennessee Law

By J. Ross Pepper on December 12, 2012 4:58 PM

Often in Tennessee, a husband and wife will sign a will in which both leave their property to the surviving spouse. Sometimes, particularly it seems, when the husband and/or wife have children from a previous marriage, will contest cases are brought to determine whether the surviving spouse is bound by terms allegedly agreed to between the surviving spouse and the deceased spouse in a will signed while both were alive.

If you are a beneficiary or relative trying to figure out your rights and/or the rights of other beneficiaries in a joint or mutual will case, a good starting point is to understand some basic Tennessee will terminology. The first determination which should be made to analyze your legal rights and the strength of your case is whether your situation involves joint wills or a joint and mutual will. If the husband and wife signed two separate wills with reciprocal provisions, they would typically be considered joint wills. If the husband and wife executed one will with reciprocal provisions, the will would typically be considered a joint and mutual will.

Where a husband and wife have executed a joint and mutual will wherein they express that the bequests that they have both made are made in consideration for each other, the odds are that the chances of the surviving spouse's ability to avoid his or her bequest made in that will, by trying to revoke the will after the death of the other spouse or by executing a new will after the death of the other spouse, are not very good. On the other hand, as evidenced by several Tennessee cases, where joint wills (two separate wills with reciprocal provisions) are involved, it is quite possible, depending on the circumstances, that a Tennessee court might well find that the surviving spouse is not bound by will terms to which he or she previously agreed.

In will contest cases involving joint wills or joint and mutual wills, T.C.A. section 32-3-107 comes into play. That statute has been described by the Supreme Court of Tennessee as the Tennessee legislature's effort to set forth "rather rigid" requirements for proving that someone made a contract to make a will or made a contract not to revoke a will. Among other things, that statute makes it crystal clear that the mere fact that two people have executed joint wills, or even a mutual will, does not create any presumption that either contracted to make a will or agreed to refrain from revoking a will.

A good case to review to understand how a Tennessee court might approach and decide a case involving joint wills is the decision of the Supreme Court of Tennessee in Junot v. Estate of Gilliam. In that case, the husband and wife (who were both in a second marriage) both executed separate wills on the same date at their attorney's office. The Supreme Court described the wills as "reciprocal" because both contained the same provision directing that all property be distributed to the surviving spouse (except in a certain limited circumstance which had not occurred and which is not relevant to the discussion in this blog). Both wills also contained the same language which provided that, if the other spouse pre-deceased (and, therefore, could not take) all the property of the surviving spouse was to be divided equally between the five children of the parties (husband's three children by another marriage and wife's two children by another marriage) upon the death of the surviving spouse.

The husband in the Junot case died before the wife. After the husband died, the wife executed a new will in which she left all of her property to her two children only. The Supreme Court held that the wife's second will was valid, and that she was not bound not to revoke her previous will.

The court noted that, under Tennessee law, a contract to make a will or not to revoke a will must be proven by clear and convincing evidence. The fact that the husband and wife had executed reciprocal wills on the same date at their lawyer's office was not enough, without other evidence, to prove to the Supreme Court that the husband and wife had a contract pursuant to which neither could revoke their joint wills.