In re Estate of Osborne, 111 S.W.3d 218 (Tex. App.—Texarkana 2003, pet. denied).
Husband and Wife executed a joint will in 1978 providing for all
property of the first to die to pass to the survivor. Upon the
survivor’s death, all property would pass equally to their four
children, two sons and two daughters. Without Husband’s knowledge or
consent, Wife later executed a holographic will which left her entire
estate to her two daughters. Husband died and Wife received his entire
estate under the joint will. When Wife died, a dispute arose between the
two daughters who wanted to probate Wife’s new will and the two sons who
wanted to enforce the joint will as a contractual will. The trial court
found that the joint will was contractual and imposed a constructive
trust on Wife’s estate in the sons’ favor. The daughters appealed.
The appellate court affirmed. Because Husband and Wife executed the
joint will before September 1, 1979, Probate Code § 59A did not apply.
Accordingly, the primary factors the court examined to determine whether
the joint will was contractual was whether the will (1) treats the
property of both testators as one estate and (2) sets forth a
comprehensive plan for disposing of both estates when the first testator
dies and upon the death of the survivor. The court examined the joint
will, determined that it met both of these criteria, and that it was
contractual.
The court rejected the dissent’s argument that the will failed to
dispose of the remainder of the estate upon the death of the survivor
because the residuary clause did not expressly use the phrase “upon the
death of the survivor” or words to that effect. The majority determined
that by reading the will as a whole, it was clear that it disposed of
the entire estate upon the survivor’s death.
Moral: The issue presented in this case was resolved by the enactment of
Probate Code § 59A, effective with regard to wills executed on or after
September 1, 1979, which requires that the terms of the contract be
stated in the will or in a separate enforceable writing.