[WSBAPT] contract for wills

[Philip N. Jones]

I tend to vote with Cy.  A contract to make a will gives me the willies.  It is too easy for the decedent to transfer assets through gifts, joint ownership, POD, TOD, and beneficiary designations that defeat the point (or effect) of the contract, all the while mainlining a will in place that seemingly complies with the contract, only to find after death that the estate governed by the will has been diminished or eliminated.  Deal me out.
Phil Jones
Portland, OR

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Cyrus Field
Sent: Wednesday, December 12, 2018 11:57 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] contract for wills

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> [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<mailto: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> [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<mailto: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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