Meyer v. Shelley, 34 S.W.3d 619 (Tex. App.—Amarillo 2000, no pet.).
Husband and Wife executed a contractual will. Wife died. Husband then
executed a new will and began dissipating the assets subject to the
contractual will. Beneficiaries of the contractual will brought suit
against Husband. The trial court dismissed the suit finding that the
lawsuit was premature.
The appellate court agreed. The court began with a discussion of the
basic rules applicable to contractual wills focusing on the general rule
that the survivor has the right to revoke the contractual will but that
doing so in a manner which changes the disposition of the property
subject to the contract may result in liability for breach of contract
after the survivor dies. A will speaks from the time of a testator’s
death. Because Husband has not yet died, it is not possible to ascertain
the property which would be controlled by the contractual will. In
addition, the contractual will did not limit Husband’s power to use or
dispose of the property received from Wife. Consistent with earlier
Texas cases, the court indicated that there cannot be a breach of the
contract until Husband dies without performing as he promised. He could
always revoke the new will and execute a will with the same disposition
plan as the contractual will.
Moral: Contractual wills should be avoided. Other estate planning
techniques, such as a trust, will provide greater certainty and
predictability in carrying out a client’s intent.