Ray v. McMaster, 296 S.W.3d 344 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).


Contractual Wills

Husband and Wife executed reciprocal wills containing the following provision:


8. Contract With Spouse. I hereby declare that I have an oral and/or written agreement with my spouse as to the disposition which may be made of my property, any property taken under this Will or my spouse’s property upon the death of either of us. We have identical, or legally similar Wills, intending thereby to be contractually bound.


Each will named the other spouse as the primary beneficiary. If the spouse predeceased, then Nephew was the beneficiary. After Wife died, Husband executed a new will naming Niece as the primary beneficiary. After Husband died, Nephew claimed that the original will was contractual and that Husband breached its terms by naming Niece as the beneficiary. The trial court agreed.

The appellate court reversed. The court studied Probate Code § 59A and held that the reciprocal wills did not meet the requirements of the statute. Nephew asserted that the wills satisfied Probate Code § 59A(a)(2) which provides that a contract can be established by “provisions of a will stating that a contract does exist and stating the material provisions of the contract.” The court explained that although the will did state that a contract existed, it failed to state the material provisions of that contract. The wills did not recite the consideration to support the contract and did not provide that they could modified or revoked only upon mutual consent.

Moral: If a testator desires to make a contractual will, the testator must comply with the requirements of Probate Code § 59A by either (1) stating that a contract exists and the material provisions of the contract or (2) executing a written agreement that is otherwise binding and enforceable.