Estate of Faccibene, No. 05-17-01072-CV, 2018 WL 5725324 (Tex. App.—Dallas Nov. 1, 2018, no pet.).


Contractual Wills


The testator and his wife executed a joint will leaving property to their four children. After the testator’s wife died, the testator executed a new will leaving property to only two of the children. Later, the testator died and the new will was admitted to probate. The trial court granted a summary judgment that the testator’s original will was a contractual will under Estates Code § 254.004.


The appellate court reversed. The court examined the testator’s original will and found that it neither stated that a contract exists nor the material provisions of the contract as required by Estates Code § 254.004. In addition, there was no separate written agreement that the will was contractual. Instead, the will was merely a joint will, that is, one document containing the wills of both the testator and his wife. The Estates Code expressly states that the execution of a joint will “does not constitute by itself sufficient evidence of the existence of a contract.” Id.


Moral:  If a client desires to execute a contractual will, make certain that either (1) the will states that a contract exists and its material provisions, or (2) there is a written binding and enforceable agreement relating to the will.