What is a Joint Will?

Joint Wills: A Litigious Estate Plan

It is not unusual for a married client to declare that they want a “Joint Will” with their spouse. A Joint Will is one Will signed by two individuals, usually a married couple. In a Joint Will, the parties dispose of assets in a pre-set plan. Assuming neither spouse attempted to revoke the Joint Will, it can be offered to the probate court twice. A Joint Will is different from “Mutual Wills” in which there is an agreement to maintain separate Wills disposing of property as agreed by the parties.

The married couple is almost always effectively served by the creation of two separate mirror-image Wills, leaving everything to each other, then to their children. In some situations, such as if the client wants to prevent the surviving spouse from freely disposing of the client’s assets to third-parties or children from prior relationships, then trust planning is often appropriate. Joint Wills and Mutual Wills should be avoided because of the inability to effectively undo the plan after the death of one of the parties. “Concisely stated, of course, it is the contract and not the mutual will which is irrevocable.” Moats v. Schoch, 24 Md. App. 453 (1975).

What potential clients must know is that “joint wills are not regarded with much favor by the courts, and are . . . apt to invite litigation.” Shimp v. Huff, 315 Md. 624 (1989)(quoting George W. Thompson,  The Law of Wills, § 34 at 69 (3rd ed. 1947)).

In the case of Mr. Lester Shimp and his wife Clara, the Will provided everything to the survivor among the two, then, upon the death of the survivor, to specified individuals. Clara died in 1975 and in 1980, Lester sought court approval to change his Will. The Maryland Court of Appeals (Maryland’s highest Court) held that “Lester was ‘entitled to a declaratory decree stating that he may revoke his will but that an enforceable contract was entered into between him and his wife . . . . [and that] [a]t his death it may be specifically enforced in equity or damages may be recovered upon it at law.’” Id. at 629 (quoting Shimp v. Shimp, 287 Md. 387, 388 (1980)). Lester did not attempt to change his Will, but married Lisa Mae in 1985. Lester died in 1986 whereupon Lisa Mae asserted her right to the family allowance and elective share provided by statute. The Court therefore had to confront whether the statute or the Will’s provisions controlled.

After a thorough analysis of cases from across the United States, the Court concluded that in most cases the “superior equities were with the surviving spouse.” Id. at 637. The Court noted that in some court cases, the outcome hinged on the fact that the “right to will property is not absolute, but is a privilege afforded the decedent by the State.” Id. at 641. The Court noted that some courts rely on the public policy that “contracts in restraint of marriage are void as against public policy” but did not stop its analysis there. Id. at 642–644 (quoting Owens v. McNally, 113 Cal. 444, 45 P. at 713 (1896). The Court of Appeals ultimately opted to look at “whether the superior equities lie with the Personal Representatives or with Lisa Mae.” Id. at 644. The Court ultimately held that the rights of the surviving spouse, Lisa Mae, were superior to other parties because the survivor among the Lester and Clara “might remarry and that the subsequent spouse might elect against the will.” Id. at 647.

While a Joint Will may seem like an “easy” estate plan, Joint Wills and Mutual Wills leave the survivor’s hands tied should circumstances change among the intended beneficiaries. As part of a standard discussion, married couples are counseled that the surviving spouse may change the plan the two of them think best in the moment. Should a couple wish to restrict a surviving spouse’s ability to dictate where assets go, then trusts are a more appropriate vehicle than a joint will.