David William Jordan

Attorney & Counselor at Law

Where There's a Will, There's a War


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Often in "blended marriages" one spouse is concerned that their children by another marriage will eventually receive part of the estate. A simple will usually leaves everything to the surviving spouse. However, upon the death of one spouse there is nothing to prevent the surviving spouse from executing a new will and leaving out the step children. However, in two recent cases in Iowa and Kansas, the court ruled the original will was a contract.

Here are the facts:

In 1962, John and Helen Graham executed a joint will in which they each promised to leave everything to whoever survived; at death, the survivor would give everything to their three daughters in equal shares. The will stated that the Grahams "mutually agree, each in consideration of the promise and act of the other," although the preamble also declared the will to be "our joint and several wills."

Mr. Graham died in 1972. In 1999, Mrs. Graham executed a new will that effectively disinherited her three daughters and gave the bulk of her estate to a granddaughter who had become her caregiver. Following Mrs. Graham's death in 2002, two of her daughters sued the estate and the granddaughter, claiming that the 1962 will was a mutual or contractual will and that Mrs. Graham breached her contractual obligations in executing the 1999 will.

The District Court ruled the will was not a contractual will, focusing on the fact that the parties referred to the document as their "joint and several wills." This is a good example of a Court rationally interpreting a document and the value of an appeal.

The Supreme Court of Iowa reversed, ruling that the Grahams' 1962 will is a contractual will, notwithstanding reference in its preamble to its "joint and several" nature.

"When read in context of the entire document," the court writes, "we think the use of 'joint and several' in the 1962 will must mean the will, to be probated on the death of each testator, comprises the intentions of John and Helen together and individually." [emphasis in original] The court imposes a trust upon all property owned by Mrs. Graham at the time of her death in favor of the beneficiaries under the 1962 will and directs the executor to distribute the property accordingly.

The Kansas Supreme Court reached the same conclusion in a ruling issued the same day in a similar case. The case involved a dispute over the wills of the parents in a blended family. Rather than rely exclusively on the four corners of the will, as the Iowa Supreme Court did, the Kansas court looks to extrinsic evidence, specifically the testimony of the attorney who drew up the wills. The Court found that the evidence established that the wills were contractual and it imposed a constructive trust on the estate property. Garrett v. Read (Kan., No. 90,570, Dec. 17, 2004).

Information courtesy of elderlawanswers.com.

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