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.