I serve a lot of couples in my estate planning practice. A few of them come and want to make only one Will, which they will both sign. Such a practice is not recognized under the law. Each person needs to make their own Will.
But the question arises, can they agree that the Wills that they make will not be revocable after death? First of all, how does this usually come about? Well, let’s say the Husband and Wife each have children from previous marriages. Husbands and wives usually leave everything to each other in their Wills, because they want to provide for their spouse. But when the second spouse dies, it doesn’t seem fair that that spouse could have changed their Will to leave everything to their own children, cutting out their spouse’s children.
So, can you promise not to revoke your Will after your spouse dies? The answer is one of those confounded legal ones – Well, yes and no.
First of all, your Will, no matter what has been promised in it or what you have promised in a separate contract, can always be revoked. How is a Will revoked? You can rip it up or otherwise destroy it. If you do this, it is best to either keep the pieces or do it in front of someone who can testify that they saw you revoke your Will. You can also revoke it by executing a new Will. My Wills say in the first paragraph that all prior Wills and Codicils are revoked.
But what if your Will promised you wouldn’t revoke? Well, you could still be liable for breach of contract, but the Will which was revoked, no matter how wrongly, is still revoked.
So, is a promise not to revoke enforceable? The answer is – yes, it can be.
There is a statute that makes contracts not to revoke enforceable if signed by both parties and witnessed by two “attesting witnesses.” This requirement must be strictly met because the law doesn’t favor the notion of interfering with a person’s right to leave his or her estate to anyone he or she chooses.
My advice to my clients who have these concerns is for them to make a Joint Revocable Trust. A Trust solves the problem nicely because the second to die can change their portion of the Trust, but not the portion designated by the first to die.
Interested in any of this? Call me and I would love to discuss this with you!!!