William’s parents write a joint will. When William’s father dies, the will remains unprobated and unopened. William and his sister Rachel have Powers-of-Attorney (separate and together) for the surviving mother who takes control of all of the possessions and finances as William and Rachel assumed that she would.
A long time passes and the mother begins to give away the possessions mostly to one side of the family. This coincides with some mental deterioration. She also makes a list showing that she wants all the possessions to go to that side of the family.
What happens if after the mother’s death, the joint will is finally opened and it is found to stipulate that possessions are to be shared equally between the two siblings after the death of the surviving parent? And will the more recent list made by the mother have any legal standing?
No answers, but I’m subscribing to this to see what the answer is.
I’ve never heard of a joint will. And I simply can’t imagine that if someone is known to have written a will, it is not opened upon their death, “joint” or not. Even for the surviving spouse, opening the will might be neccessary to secure legal ownership of property that wasn’t already jointly owned.
If the wife owns all the property after the husband dies, then she is certainly not bound to give things away according to his wishes in her own will, or while she’s still alive. He can’t give it to her, and take it back later to redistribute it.
I hadn’t heard of a joint will either, but apparently, there are such things. A joint will doesn’t have to be probated when the first spouse dies. That keeps others from challenging the will. Interesting, huh?
You would think it would have to be read. It’s ridiculous to simply take the word of the spouse for what it says, “Oh, I get everything. Nothing to see here, move along.”
If a gift is mentioned in the will and the testator has given/sold that item before the will is read, then the gift is adeemed – that is, it is treated as if it doesn’t exist.
So in my law student opinion, it doesn’t matter if it’s mentioned in the will, even if it’s a joint will. However, if the person’s mental state is deteriorating a conservator/guardian could be appointed to maintain her property so she doesn’t give away the farm.
I’m not a lawyer, not legal advice, dada dada.
I’ve actually seen where somebody dragged her mother in to have her sign a codicil saying the silver tea set goes to her no matter what her sister thinks. I have nothing but contempt for these people…
Oh, and as for the new list substituting for the old list, it generally does. A testator can revise a list at any time, so long as a couple of requriements are satisfied. I’m afraid poor William etc are out of luck.
After reading the question again it looks like you said “all possession are to be split equally” and didn’t mention them being specifically listed in the will. The possessions in an estate are determined AT THE TIME OF DEATH. Before that, it’s for the testator to determine where they go.
It’s a little interesting…you can put a clause in your will stating “all the items in my living room are to go to Jan”, and you can then put things in the living room and take them out whenever you want. The items in the living room become Jan’s at the time of your death. You can effectually change your inheritance to her whenever you feel like it…moving artwork, etc…and she can’t do anything about it because they’re not hers yet.
I feel like putting that in my will, out of sheer cussedness
Lawyerly answer: it depends on the laws of the state.
I’ve heard of joint wills. They are hugely discouraged in the state in which I am licensed. They are treated more like contracts than actual wills, though, because the survivor has promised to honor it, even if circumstances change (e.g., remarriage). And usually it says, if H dies first, all goes to W; if W dies first, all goes to H. In that case, if W gives away the farm, it’s completely in her right to do so (provided she’s in her right mind, not coerced, etc. etc.).
That said, in the state I used to practice, *anyone *with an interest can ask the court to open the probate estate. It doesn’t have to be the surviving spouse or personal representative. If son or daughter wants to see what’s in the will, they should go talk to the probate court in the state/county where dad died to get the ball rolling. But again, it depends on the laws of their state. The probate court is generally very helpful about these sorts of things.
Just my two cents and just for informational purposes.
The “joint will” is something I’ve never heard of, but it sounds like it basically means that whoever dies first just doesn’t get a say in how the property is distributed- i.e. everything passes to the surviving spouse whose part of the will then takes effect. which is an OK arrangement, if that’s what you want to do, but seems to defeat the purpose of the will of the first deceased.
I could see, in this situation, a contest of the will after the mother’s death by the shorted side of the family, and the treatment of the gifts to side A as being testamentary and then being offset by a transfer to side B to reach the intention of the parties of the joint will.
Of course, I’d need to read the joint will and know the law regarding said instrument, and neither applies.
There’s also complexities as to how the property is titled (and acquired) etc., not to mention the challenge based on competence (that should have happened before the mom died).
If the will says possessions are to be divided equally between the siblings at the death of the surviving spouse, then the possessions that THEN exist, that is, at the time of the death of the surviving spouse, whatever is left, is divided equally between the sibs. If nothing’s left, the sibs get nothing.
Unless the will states that a memorandum (or other extra-will document) exists to parcel out individual possessions, Mom would have to amend the will, which, being a joint will may not be allowed. That’s the contractual basis of a joint will. It probably said, and the parties agreed to, stuff goes to the survivor and at the death of the survivor, all gets divided equally between surviving issue. If Mom is trying to leave stuff to someone not mentioned in the joint will, she’d have to amend the will or create a new one, which may present legal difficulties.
If Mom created a new will, she’d be in breach of the joint will. If she amended her will, i.e., add a codicil to bequeath items not mentioned in the joint will, she would have to comply with all the statutory will execution requirements before it would be valid. Which may or may not be allowed in her state or by the joint will.
I’ve heard of joint wills and how they function varies from state to state. In my state, joint wills function similarly to a contract. The joint will is an odd creature in that while wills are ambulatory and can be revoked at any time, joint wills are contractual in nature, and that the contractual aspect is what is generally sued on.
The state I practice in considers them to be a bad idea and strongly discourages them. However, they are still enforceable. However, the question becomes, what are the terms of the contract? Also, state laws vary on how the will can be revoked within the lifetime of the two testators. In some states, notice is required, and in some states, notice is not. The states vary on whether the joint will is a contract or not, absent contractual language. Some states don’t have a lot of case law on the subject so results will vary.
Under the laws of the state I practice in, the most recent list probably doesn’t have any validity if it conflicts with the joint will. However, the laws governing these lists vary from state to state and your mileage will vary greatly.
Rachael and William should see an attorney who specializes in Trusts and Estates. These issues can be thorny and vary wildly from state to state. Where I practice, they don’t come up very much, so it is possible that an attorney can practice for years without seeing such a case.
I agree with this. My husband owns a 67 Mustang. He had it before we were married. If he wants to will that to someone, he can, and I would have no say-so over it. If he never says anything one way or the other about the car, I get it when he dies.
But still, there must be some provision to enable interested parties or other family members to force the surviving spouse to disclose the contents of the will. Otherwise, every spouse in the world unhappy with the terms of their partner’s will could simply claim there is a joint will and everything is theirs.
You can file an action to force the spouse to produce a will. However, you have to determine who the interested party is and what their standing to sue is. It helps to have a copy of the will. In some jurisdictions, the will can be recorded in the clerk’s office or with a register of wills. Most of the time, if a spouse intends to have an estate plan that the other spouse doesn’t agree with, they do it with a lawyer and the lawyer may have the original or they insure that someone other than the wife has the will.*
Generally, the surviving spouse who wants to enforce the joint will has to produce it, otherwise, they aren’t going to get very far.** You can’t just claim that there is a will that you want enforced and not produce it.
Under most intestacy laws, the surviving spouse inherits everything provided that there are no children from a previous relationship. So if the surviving spouse is really unhappy, they may destroy the will.
Remember, the purpose of the joint will is that both husband and wife are deciding together as a contract who gets what. Meaning that both people are locked into it, not just the husband or the wife. ***
From what I’ve seen, suits involving joint wills are usually brought by the beneficiaries after the death of both spouses where the surviving spouse has attempted to revoke the will and has done a new estate plan. The beneficiaries of the joint will sue as third party beneficiaries of the joint will to have the terms of the joint will enforced. Not surprisingly, like most estate litigation, these suits get really ugly.
For the most part, you aren’t going to get someone to claim that there is a joint will because most people have never heard of such a thing.
They could also have a living trust.
** Your state law may vary wildly.
*** With some exceptions or loopholes depending on state law.
To all of you who have not given official legal advice, I offer hypothetical thanks. I don’t think that I will go this route in making a will.
It makes sense to me that at least a judge should be able to see the father’s part of the joint will can despite what William’s mother says. How is he supposed to know not to open it? She is an interested party and may have ulterior motives for telling him that.
He doesn’t seem interested in “stuff” so much as fairness and legalities.
This could be misleading. I don’t know ALL state intestacy statutes, but many state intestacy laws require that a portion of the deceased’s estate be given to the surviving spouse and the remaining portion divided equally between the deceased’s issue, be they from the current or from a previous relationship. In South Carolina, for example, fifty percent goes to surviving spouse and the remaining fifty percent is divided equally between the children.
That would certainly give the issue (child, grandchild) the requisite interest as a potential beneficiary to go to the probate court and demand his/her share of the estate. Then the surviving spouse would have to produce a will to prove a different result. And that will would be probated.
