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Should I Make A Joint Will With My Spouse?

A couple goes to an estate planning attorney to make arrangements for their final affairs and asks that attorney to put both of their wishes into a single last will and testament. The attorney responds by saying that the couple should make separate wills. Why make them separate? The couple has the same estate plan in mind and there is no reason it can't be on the same piece of paper. Is this attorney trying to get two wills for the price of one?

Joint wills can be problematic because, depending on the language contained within, the document may constitute a binding contract between the two testators. If it is a binding contract and a testator dies, the document becomes irrevocable and the surviving testator is bound to its terms. Under these circumstances, any attempts by the surviving testator to amend, revoke or execute a new and different last will and testament shall be deemed invalid.

MCL 700.2514 of the Estates and Protected Individuals Code addresses the issue of contracts to make a will or devise as follows:

  • (1) If executed after July 1, 1979, a contract to make a will or devise, not to revoke a will or devise, or to die intestate may be established only by 1 or more of the following:
  • (a) Provisions of a will stating material provisions of the contract.
  • (b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.
  • (c) A writing signed by the decedent evidencing the contract.
  • (2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

The "contract" doesn't have to be a separate writing and can be contained in the very language of the last will and testament. This statute is consistent with the previous law in the Revised Probate Code that joint wills do not automatically mean that there was a contract to make a joint will. If there is no "contract" , then the joint will can be revoked by either of the co-testators. However, there is a danger here to both the co-testators creating the joint will and the scrivener of the document. If the joint will leaves certain devises or bequests, or the overall drafting of the document is sloppy and incomplete, then the probate court may infer the existence of a contact to make a joint will where one was not intended.

  • Schondelmayer v Schondelmayer, 320 Mich 565; 31 NW2d 721 (1948) - The Michigan Supreme Court addressed whether a joint will became irrevocable after the death of the decedent's first spouse. The joint will provided that the survivor of the two would "become the sole owner of any and all property owned by either or both of them... [and] said survivor shall live as he or she has been accustomed using so much of the income as may be necessary for his or her comfort [and] convenience." Finally, the document stated "[t]his instrument is hereby declared to be the last will and testament of either, as the said survivor, and after the decease of said survivor, the estate shall be divided as follows:" after which provisions were made for their three sons. The joint will creates a life estate for whichever spouse survives for the entirety of the property, then bequeaths the remainder to specific beneficiaries when they are both gone. The Michigan Supreme Court found that the language declaring this document to be the last will and testament of both spouses, and then as such to the survivor of them, made this will irrevocable and vested a right of action to enforce it with the heirs.
  • Rogers v Rogers, 136 Mich App 125; 356 NW2d 288 (1984) - The Michigan Court of Appeals addressed whether the language in a joint will between spouses became an irrevocable contract. It states, in part, that "it is the will and desire of each of us, and the mutual wish and desire of both of us, that on the death of either of us, all of the property of the deceased party, whether real, personal or mixed, shall become the sole and separate property of the surviving party for his or her use so long as the survivor shall live... [and] upon the decease of the survivor of us, we give, devise and bequeath any remainder and residue of our property to the following people, in equal shares, share and share alike..." after which it makes devises to specific beneficiaries. As in Schondelmayer, the joint will creates a life estate in the surviving spouse to the entirely of the estate then bequeaths the remainder to certain individuals when they are both gone. Furthermore, the Court of Appeals held that, under these circumstances, the joint will becomes irrevocable when the surviving testator "avails himself of the benefits of the devise in his favor."

More recently, the Michigan Court of Appeals decided In re Estate of Bitto, unpublished per curiam opinion of the Court of Appeals, issued August 21, 2018 (Docket No. 339083; 339507) and upheld the Monroe County Probate Court's determination that a joint will was an irrevocable contract between the co-testators. The relevant language of the joint will is as follows:

"We, Louis H. Bitto, III and Judith Ann Bitto . . . , being of sound mind and disposing memory, for the purpose of making disposition upon our death, of our entire estate, real, personal and mixed, and any estate which we may have power to dispose of, wherever situate, whether owned and possessed by us at the date of execution hereof or acquired by us after such date, do hereby make, publish and declare this to be our Last Will and Testament."

"ALL of our estate, whether held jointly, severally, or as tenants in common, both real, personal and mixed, shall be held by the survivor of us with the right to the income, rents or profits of all our property for the life of the survivor, and so much of the principal as the survivor may desire from time to time for his or her care and support with his or her sound discretion, and with the further right on the part of the survivor to sell and execute conveyances of, without the authority or approval of any Court, any or all of the property, to invest and reinvest the same, and to use the proceeds as he or she may deem proper during the survivor's lifetime for his or her care and support without being required in any manner to account therefore."

"Upon the death of the survivor of us, or in the event of our simultaneous deaths, WE GIVE, DEVISE AND BEQUEATH, all of the rest, residue and remainder of our estate, real, personal, or mixed, of whatsoever nature and wheresoever situate, to which we may be entitled or which we may own, and any estate which we may have the dispose of at death, and which has not been heretofore disposed of in this Will to our three children, SHERYL L. DAUTERMAN, BRIAN M. BITTO and LOUIS H. BITTO, IV, and to Louis H. Bitto, III's son, TERRY MICHAEL WOODS in the following shares: . . ."

One of the heirs, Louis H. Bitto IV, challenged the joint will on the basis that it was not an irrevocable contract and that the probate court should admit the last will and testament executed by the decedent in 2015. Relying on Schondelmayer and Rogers, the probate court determined that the intent appears to be a joint contract, that the surviving spouse was given a life estate in the entirety of the property that he clearly availed himself of, and that the joint will vested rights into specific beneficiaries that were actionable. The Court of Appeals agreed and found the language of the document and the unique circumstances created an irrevocable joint will.

There is nothing wrong with a joint will if it remains the enduring wish of the living co-testator. However, it is possible that the surviving spouse will remarry, start a new family and combine the new spouse's relatives into a stepfamily. This is an event that seems both inconceivable and unforeseeable at the time the joint will was created because of the bond with the then-living spouse. Life goes on and circumstances change. If the joint will is determined to be an irrevocable contract, then no provision can be made for the second family. If the parties had drafted separate and individual wills, then there is no limit on when and how those instruments can be amended or revoked during the testator's lifetime.

Joint wills certainly have their benefits and can strengthen the intentions of the married couple, but it is just as important to be aware of the potential drawbacks to avoid unintended consequences in the future. If you have further questions about joint wills, do not hesitate to contact the probate and estate planning attorneys at Kershaw, Vititoe & Jedinak PLC.

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