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