A joint will is a rarely seen document, in which a husband and wife execute one will will for both of them. Under Michigan law, can the surviving spouse, after executing a joint will, make a new will at variance with the joint will? A recent Michigan Court of Appeals case, Estate of Bitto, Nos. 339083, 339507, 2018 Mich. App. LEXIS 3068 (Ct. App. Aug. 21, 2018), says no.
What is a Joint Will?
A joint will is a will with two testators that controls the disposition of the assets of both at each death. They were apparently not recognized under early common law.
In Williams on Executors, vol. 1, p. 9, we find it laid down, “Another essential distinction between a deed and a will may be mentioned, that there cannot be a conjoint or mutual will; an instrument of such a nature is unknown to the testamentary law of this country.” For this the author quotes 1 Cow. 268, in Lord Mansfield’s judgment in Darlington v. Pultery. Hobson v. Blackburn, 1 Addam’s Eccl., 277; and he is fully supported by his references.
Clayton v. Liverman, 19 N.C. 558 (1837) (opinion proclaims it is the first case in the country to rule on validity of a joint will).
Another early case from Ohio:
When this case was first presented for our consideration, the idea of a joint will struck us as being an utter novelty. And it seems to us, that the idea must have been equally a stranger to the legislature which enacted our statute of wills, and statutes for the settlement of the estates of deceased persons. In all their provisions and phraseology, they provide for nothing, and seem to contemplate nothing, but separate wills and individual estates. “Any person of full age,” etc., may make a will, etc.; shall be signed “by the party making the same,” etc.; shall be “attested and subscribed in the presence of such party,” etc.; may be deposited in the office of the probate judge “by the party making the same,” etc., “in the county in which such testator lives,” etc., shall be indorsed with the “name of the testator,” etc.; and in the lifetime of the testator, shall be “delivered only to himself;” and so on throughout. It is said, however, in reply to this suggestion, that in the reasonable construction and application of these acts, provisions which apply to persons and things expressed in the singular number only, will be held to apply as well to persons and things in the plural number, when the policy and evident intent of the act requires it. But, on this subject, the statute of wills is its own interpreter.
Walker v. Walker, 14 Ohio St. 157 (1862).
At some point, joint wills became recognized in the United States. The validity of a joint will is now codified in many states, including Michigan (MCL 700.2514) and Florida (Florida Statute 732.701(2)).
Is a Joint Will a Bad Idea?
Yes, making a joint will is a bad idea in Michigan and really any other state. In the absence of very careful and specific drafting, it will be uncertain whether the joint will can be revoked by either party to the joint will before either death. It will also be uncertain whether the will can be revoked or amended after the death of the first spouse. In the absence of explicit language, the interested persons will be left with relying on state law, which is fairly scant in most jurisdictions given how rare joint wills are.
After the death of the first spouse, what happens if the survivor needs to make a change to the joint will other than to the bequests? What if the named executor dies? Can the surviving person add a new executor? What if the named executor has stolen from the surviving maker of the joint will, yet is not convicted of a crime. Can the survivor change executors? Will the executor named in the original joint will be able to contest the appointment of a different executor? The problems with a joint will are endless.
What is a Contract to Make a Will (And Is It a Better Idea)?
A contract to make a will is superior to a joint will in every respect, because only those items of importance need be covered in the contract. For example, a somewhat common contract to make a will can be found in divorce agreements, where each spouse agrees to leave a portion of their estates, for example one-half, to the joint children of the marriage. The remainder of the estate can then be controlled by each person, and less important terms, such as the identity of executors, is not fixed by the agreement.
Contracts to make wills are still problematic, given the explosion of bequests outside of wills and the probate estate. For example, bank accounts and brokerages can now have “Pay on Death” designations, which might not be covered by a contract to make a will. Also, one of the parties gifting assets prior to death could also defeat the purpose and intent of a contract to make a will.
In Michigan, Can the Survivor Make a New Will Inconsistent with the Joint Will?
No. In the Bitto case, a husband and wife had three children, and they executed a joint will leaving the entire estate to all three children at the death of the second spouse. After the wife’s death, the husband made a new will. The Michigan Court refused probate of the new will, as follows:
Based on Rogers and Schondelmayer, the probate court correctly held that the joint and mutual will executed by the Bittos in 2005 was intended to be irrevocable upon the death of the first spouse. The Bittos prepared a joint and mutual will in which they planned to dispose of their joint estate to designated beneficiaries, subject to a life estate in the surviving spouse. Their will was almost identical to the wills in Rogers and Schondelmayer, which were held to be irrevocable upon the death of the first spouse. Accordingly, the probate court correctly held that the 2005 will became irrevocable upon Judith Bitto’s death. As a result of being bound by their mutual agreement regarding their 2005 will, the decedent could not dispose of the estate by means of the will he executed in 2015.
In Michigan, Can a Breach of Contract Claim Be Filed To Enforce Certain Bequests Set Forth in the Joint Will?
The person who benefited from the new will argued that instead of refusing probate of the new will, the persons harmed by the new will should bring a Michigan breach of contract action to receive the benefits to which they were entitled under the joint will, allowing probate of the new will. Although the decision does not explain, presumably there were some parts of the new will that benefited one the parties that would not have interfered with the beneficiaries of the joint will being able to receive they bequests to which they were entitled under the joint will, in the form of breach of contract damages. The Court flatly rejected this argument:
Having decided that the 2005 will established a binding contract that became irrevocable after the death of Judith in 2006, the probate court was authorized to compel specific performance of that contract, which necessarily precluded administration of the estate pursuant to the terms of the 2015 will. Accordingly, the probate court did not err in ruling that the 2015 will was void or invalid.
