[WSBAPT] contract for wills

Wed Dec 12 11:57:18 PST 2018

Because of the issues surrounding contracts to make Wills (e.g. tracing of
assets, dealing with changed circumstances such as remarriage or
disability/needs of beneficiary, possible disposition of assets prior to
survivor's death) I tell potential couple EP clients in my initial letter
re: joint representation I won't do those contracts. Instead, if they want
to do that much reaching from the grave, I recommend a trust and if they
insist otherwise, I decline representation. At least that's how I roll at
the moment. Thanks, Cy 

Cyrus W. Field, Attorney at Law (admitted in Washington and Oregon)

phone: 360-472-1223 Mail: POB 367, Shaw Island, WA 98286 Office: 640 Mullis
St. Friday Harbor, WA

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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Wednesday, December 12, 2018 11:22 AM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] contract for wills

There was a discussion a long while back on this. Copying and pasting below:

My primary concern always is identification and control of the decedent's
assets that are supposed to eventually go to the decedent's kids, through an
unknown amount of time until the surviving spouse dies. My secondary concern
is flexibility for the surviving spouse to accommodate changed circumstances
in a way that fairly balances the surviving spouse's interests with that of
the decedent's kids.

When we last had a listserve discussion about Will contracts (in the context
of mutual Wills), I copied into my files the following comments from others:

Mutual wills are clumsy and the law relating to them is not well developed.
If there's a possibility that one of the spouses might remarry following the
first death, consider how the survivor's mutual will would work, in light of
the new marriage.  E.g., if surviving wife remarries and doesn't make a new
will, upon her death the 2nd husband becomes entitled to that share of the
wife's estate as if she had died intestate.  That would blow up any plan
envisioned by mutual wills.  Or, suppose wife dies, surviving husband
remarries; the new wife then dies and leaves her estate to the husband.  Can
surviving husband bequeath any of the assets that he inherited from the 2nd
wife to her kids?  Is the surviving spouse precluded from making non probate
transfers?  Gifts?  

Just food for thought.  Trusts are more flexible-they can account for all
the assets acquired by the couple, without locking in a survivor with
respect to assets acquired with a new spouse.

And irrevocable means that it can be problematic for surviving spouse to
deal with changes in the circumstances of children, such as the need for a
special needs trust for a subsequently disabled child; or other
circumstances that require change. I would at least retain the ability to
change provisions as to one's own children; since the purpose is (I assume)
to prevent the children of deceased spouse from being disinherited.

If for some reason I do conclude that mutual Wills might be the way to go,
my starting point is the following draft language, subject of course to
editing as I consider the specific circumstances and the priorities of the
client:

This Last Will and Testament is executed pursuant to an agreement with the
Testator's spouse that (1) they shall execute and maintain mutual Wills that
make reciprocal provisions for disposition of property after they both are
deceased as set forth in this Last Will and Testament, and that (2) after
the death of the first of them, the Last Will and Testament of the survivor
shall be irrevocable as to disposition of (a) all property that was
community property at the time of the first spouse's death and the rents,
issues, profits, and proceeds thereof, and (b) any and all other property
received by the survivor from the first spouse to die, whether under the
Will or by non-probate transfer or otherwise, and the rents, issues,
profits, and proceeds thereof. By executing this Last Will and Testament,
the Testator acknowledges the existence of said agreement between the
spouses, and intends to be bound thereby.

Have the other spouse sign under this contract language, on the testator's
Will, so there is contemporaneous acknowledgment of the contract by both
parties.

A major problem I see with this draft language is the rat's nest of
asset-tracing that has to be done when the surviving spouse dies. It's a
huge opportunity for litigation and a great way to ruin relationships. Thus
my preference for segregation via a trust when the first spouse dies; it
eliminates the need to trace assets.

>From Reutlinger:

The execution of simultaneous and/or reciprocal wills is not evidence of any
contract or agreement that they should be irrevocable, absent any reference
to such an agreement in the wills.[121] Although the content of the wills
can strongly indicate existence of an agreement not to revoke,[122] there is
no substitute for a recitation of the agreement in the will[123] or another
writing.[124] Lacking such a writing, the court will consider such factors
as an inequitable division of property as disproving that there was a
contract.[125]

If the will is to refer to the agreement not to revoke, it should do so
clearly and should not leave anything open to a different
interpretation.[126]

When the Statute of Frauds is involved, the mere making of the mutual wills
is not sufficient part performance to remove it from the statute.[127] The
burden of proof of mutual wills is the same as for other will
contracts.[128]

[121] In re Gulstine's Estate, 154 Wash. 675, 282 P. 920 (1929); In re
Weir's Estate, 134 Wash. 560, 236 P. 285 (1925).

[122] See Prince v. Prince, 64 Wash. 552, 117 P 255 (1911), distinguished in
Weir's Estate, 134 Wash. 560.

[123] Newell, 23 Wn.App. 767, distinguishing Richardson's Estate, 11 Wn.App.
758.

[124] In re Krause's Estate, 173 Wash. 1, 21 P.2d 268 (1933).

[125] Arnold v. Beckman, 74 Wn.2d 836, 843, 447 P.2d 184 (1968); Clark v.
Crist, 178 Wash. 187, 34 P.2d 360 (1934).

[126] See Richardson's Estate, 11 Wn.App. 758.

[127] Allen v. Dillard, 15 Wn.2d 35, 50, 129 P.2d 813 (1942); In re
Gulstine's Estate, 154 Wash. 675, 681, 282 P. 920 (1929).

[128] Richardson's Estate, 11 Wn.App. at 762.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Kim Hammit
Sent: Wednesday, December 12, 2018 11:04 AM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] contract for wills

I have a situation in which the clients (unmarried partners) are wanting to
do a contract for mutual wills.  I've not done this before.  Any guidance
would be greatly appreciated.  Is this a separate contract and the
consideration is simply "mutual contract for will?"  Any form language or
actual forms I can borrow from would be much appreciated as well.  Thank
you.

Kimberly S. Hammit

Associate Attorney

GSJONES LAW GROUP, P.S.

1155 Bethel Avenue

Port Orchard, WA  98366

Tel:  (360) 876-9221

Fax: (360) 876-5097

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