Should Husband and Wife Have Separate Wills?
Updated: Mar 4
When thinking about the difficult decision of creating a will, many couples do not know if they should create a joint will or two separate wills. Both ways of creating a will are legally binding, but writing separate wills creates a lot less headaches along the way. Read here to find out why writing separate wills are better in most circumstances.
· Some married couples execute what is called “joint wills.” In a joint will, both spouses execute a will in the same document.
· A joint will is legal.
· But joint wills can create a lot of problems, so it’s best for the spouses to have separate wills.
Oklahoma law says,
“A conjoint or mutual will is valid, but it may be revoked by any of the testators in like manner with any other will.”
In other words, you may make a joint will with your spouse. However, you may later revoke the portion of the will that devises your property, even if your spouse does not revoke her portion of the will. Your spouse may also revoke her portion of the will, even if you don’t revoke your portion of the will.
The Oklahoma Court of Civil Appeals explained this principle in Matter of the Estate of Richardson. In Richardson, George Richardson and his wife, Olleen Richardson, executed a joint will in 1983. Then, in March 1987, Olleen Richardson, executed a new will (by herself). In this new will, Olleen purported to revoke the joint will she and her husband executed in 1983. A few months later, in July 1987, Olleen died. Then, in 1993, George died.
The Court held that, when Olleen revoked the will in 1987, her revocation only affected the portion of the will that devised her property. Because George had never revoked the will, the portion of the will that devised his property, was still in effect.
If you and your spouse make a contract not to revoke a joint will, then, if you later revoke the will, you may be sued for breach of contract. You may insert the contractual language into the will itself.
In Robison v. Graham, a husband and wife executed a joint will. In the will, the spouses wrote,
“We do hereby jointly and severally declare that the provisions hereinafter made for the disposition of the property owned by each of us and jointly by us, are the result of a contract and agreement between us, that the provisions made for each of us are induced by the provisions made by the other, and that the provisions made for each of us are the consideration for the provisions made by the other. We do further declare, each for herself and himself, that neither of us would have made the provisions herein contained for the other, but for the other making the provisions contained herein for him or her; and each of us in consideration of the premises, and for the reciprocal promises and agreements made by the other, do hereby agree not to revoke, alter, or amend this will except that prior to the death of either of us, this will may be changed, canceled, annulled, or amended by another will or codicil to this will, duly executed by both of us.”
After the wife died, the husband remarried. The husband then executed a new will, in which he purported to revoke the earlier joint will. The husband also deeded some of his property to his new wife; these deeds allegedly took effect during the husband’s lifetime.
The Oklahoma Supreme Court held that, by the language in the joint will, the husband and wife created a contract not to revoke the will, and that, therefore, the will was irrevocable. The Court held that the husband could not make a new will which revoked the joint will. The Court also held that the husband’s gifts of his property to his new wife were “without effect” since the husband had promised to devise this property in his joint will.
In many court cases, involving joint wills, one of the heirs claims that the language in the joint will created a contract. Often, the most hotly contested issue in a case involving a joint will, is whether the wording in the joint will create a contract.
You May Make a Joint Will – But Should You?
Even though a joint will is valid, a number of leading authors on estate planning law recommend that you not make a joint will. In Problems and Materials on Decedent’s Estates and Trusts (a textbook on wills and trusts that is one of the most widely used texts in American law schools), the authors write, “The usual advice of those who have studied the multitude of problems created by contractual wills is not to use them.”
Gerry Beyer, professor at Texas Tech University Law School, explains why you should not make a joint will. Beyer writes,
“In modern practice, joint wills are rarely, if ever, appropriate. The inconvenience of preparing two documents is minimal due to the widespread use of computers. The expense, delay, and opportunity for error that existed when each will had to be individually typed or handwritten are no longer significant factors.
“Problems with joint wills include 1) the difficulty of one party revoking the will by physical act if the other party does not agree, 2) the dilemma of filing the original will for probate when the second party dies because the original was previously turned over to a court, perhaps in a different county, state, or country when the first party died, 3) the increased likelihood of claims that the will was contractual in nature.”
I’ll explain each of these reasons in more detail.
1) The difficulty of one party revoking the will by physical act if the other party does not agree
Suppose the husband later has second thoughts on the joint will that he and his wife executed. The husband then tears the will up. The Oklahoma Supreme Court has said that the husband cannot revoke the wife’s portion of the will, so the wife’s portion is still valid. But, since the will has been destroyed, probating the will could be difficult. Also, if one spouse destroys the will, but you don’t know which spouse destroyed it, you won’t be able to ascertain which spouse revoked his or her part of the will.
2) The dilemma of filing the original will for probate when the second party dies because the original was previously turned over to a court, perhaps in a different county, state, or country when the first party died
Typically, when you probate someone’s estate, you have to file the original will in the courthouse. Usually, you have to probate the will in the county where the person lived at the time of his death. But, if one spouse has already died, and you already probated his estate, then you’ll have to find the will when the second spouse dies. If the second spouse died in a different county than the first spouse, then the will may have been filed elsewhere, and obtaining the will can be difficult.
3) The increased likelihood of claims that the will was contractual in nature
As I mentioned above, the most hotly contested issue in many cases involving joint wills is whether the language in the joint will had the effect of creating a contract. Courts are divided as to what type of language is necessary to create a contract.
Because of this, a joint will can create a contentious litigation issue. It’s best to avoid this issue altogether.
The bottom line – You can make a joint will, but you shouldn’t
There are a number of substitutes for joint wills. A trust can be a particularly useful device that has many of the benefits of joint wills, but avoids many of the costs. To read about the potential alternatives to joint wills, see my earlier blog posts, “Should You Avoid Probate” and “Using a Trust for Estate Planning in Oklahoma.”
If you would like further information on how you and your spouse can plan your estate, the Persaud Law Office is available to assist you. Contact us today for a consultation.
 Gerry Beyer, Wills, Trusts, and Estates: Examples and Explanations (3rd ed.), p. 221 (Aspen Publishers, 2005)