Contractual Wills

In re Estate of Friesenhahn, 185 S.W.3d 16 (Tex. App.—San Antonio 2005, pet. denied).


Husband and Wife executed wills on the same day. After Husband died, his will was admitted to probate. A dispute arose between Wife and Husband’s Children from a prior marriage. Wife claimed that Husband’s will devised certain land to her in fee simple while Children asserted that the wills were contractual. The trial court granted summary judgment that the wills were contractual.

The appellate court reversed. The court recognized that Husband’s will stated that it was “executed in accordance with a contract between” Husband and Wife. However, the gift of the land to Wife was devised to her without any restrictions and thus was an absolute and unconditional gift in fee simple. Thus, the requirement that property subject to a contractual will not be conveyed to the survivor as an absolute and unconditional gift was not satisfied. See In re Estate of McFatter, 94 S.W.3d 729, 733 (Tex. App.—San Antonio 2002, no pet.). Likewise, the other requirement of a contractual will that the will treat the estates of both parties as a single estate following the death of the survivor which is jointly disposed of by both testators in the contingent dispositive provisions of the will was not satisfied. Instead, Husband’s will merely provided alternative beneficiaries when it provided to whom the property would pass if Wife predeceased Husband.

Moral: “Texas courts view claims of contractual wills cautiously” and thus the requirements of a contractual will are strictly construed. In re Estate of McFatter at 19.