Notes From the Judge
Al Northrop was admitted to the practice of law in 1975 and is now serving on the Prince George’s County Circuit Court. He can be reached at Judge@OutLookbytheBay.com
HOW ABOUT A JOINT WILL?
We’ve devoted a significant amount of space in this periodical on wills, trusts, and related articles. Still questions come up. One such question posed by an Outlook by the Bay reader was this: “Can my wife and I simplify things and maybe even save a few bucks by doing a joint will? The simple answer is yes. But, alas, things are not always so simple. I usually don’t favor joint wills, so let’s explore why.
A joint will is best defined as a single testamentary instrument that contains the wills of two or more persons, is executed jointly by them and disposes of property owned jointly, in common or severally by them. A mutual will is one executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other. If the testators name each other as beneficiaries, the wills are reciprocal. Two or more wills may be mutual without being joint. A joint and mutual will must be the will of two or more persons contained in a single document jointly executed by them pursuant to an agreement to dispose of their respective estates to each other or to third parties. The will may be categorized as joint and several when it is initially executed, but it cannot be given effect as such if one party survives. It will be given effect as the survivor’s separate will.*
Maryland follows most states in accepting for probate a will executed by two or more persons all signing as testators. Why not? Such wills, properly drawn, meet the rather simple statutory requirements for the execution of a will in Maryland. Furthermore, no Maryland statute prohibits them.
What happens when one of the testators dies, and subsequent to his death the surviving testator revokes his will and writes a new one? Here again, the statute provides for the manner in which one can revoke a will in Maryland and, done in accordance with the statute, it can be done at any time. A validly executed subsequent will would, in fact, be his will.
However, a contract upon which the prior will was executed may be enforced and damages recovered.
To demonstrate, a couple, both in their second marriage and both with children from a prior marriage, agree to execute a joint and mutual will, each pledging to provide not only for their own respective biological children but for their stepchildren as well. One spouse dies. The survivor revokes his will and executes a new will which “cuts out” the stepchildren.
Maryland’s probate court, the Orphans Court, will admit the new will to probate. However, the original agreement, if proven, will give rise to a contractual claim against the estate by the disinherited stepchildren, a claim which the Orphans Court can and will enforce.
Note, too, that even if the joint or mutual will states that it is “irrevocable,” it is revocable.
The above is but one example of what can happen with a joint will. Other examples are easy to imagine. The point is that in an effort to achieve simplicity and cost savings, one may in fact be creating complexity and added expense. For these reasons, I generally recommend against joint, mutual and/or reciprocal wills.
* This summarizes a Maryland court decision, Moats v. Schock & Berry, 24 Md. App. 453, 458 (1975).
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