|
Before the computer age, it was
common to find wills having been prepared jointly for husband
and wife, rather than the more recent practice of having a
separate will drawn for each spouse.
An issue that has often
arisen in the courts in connection with joint wills or even in
the case of separate wills for spouses where the will
instructions provide for reciprocal benefits, is whether or not
the execution of such a document by the spouses carries with it
an implied agreement not to alter the will without the consent
of the other spouse?
Such a finding would certainly affect the true intentions of
many testators.
In answering this question,
one of the most basic principles regarding the law of wills is
that a will is revocable, provided that the testator has the
requisite mental capacity. How, then, is it possible to suggest
that a person might be restricted from making changes to his or
her will without the consent of another person?
Without reviewing the
case-law in detail, suffice it to suggest that, even in the case
of a joint will executed by a husband and wife, the mere
existence of such a document will not, in and of itself, imply
the existence of an agreement not to revoke the will without the
consent of the other.
There must be more compelling evidence than the mere existence
of a jointly-executed document in order to prove that such
agreement exists. The agreement must be proved either from the
will itself or from outside evidence.
The ratio of the story: if
you want to ensure that your spouse does not change his/her will
after your death, visit your lawyer and ensure that you have
both executed satisfactory documentation indicating such an
intention. |